Citation Nr: 1342399 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-36 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an effective date prior to July 23, 2007, for the award of service connection for medial and lateral collateral ligament laxity of the left knee. 2. Entitlement to an effective date prior to July 23, 2007, for the award of service connection for medial and lateral collateral ligament laxity of the right knee. 3. Entitlement to an effective date prior to July 23, 2007, for the award of service connection for trochanteric bursitis of the left hip. 4. Entitlement to an effective date prior to July 23, 2007, for the award of service connection for trochanteric bursitis of the right hip. 5. Entitlement to an effective date prior to July 23, 2007, for the award of service connection for bilateral plantar fasciitis, to include pes planus and bilateral tibiotalar dysfunction/malalignment. 6. Whether there was clear and unmistakable error (CUE) in a prior final rating decision that considered the issue of entitlement to service connection for bilateral knee and hip conditions. 7. Entitlement to service connection for hemorrhoids. 8. Entitlement to service connection for or a disability manifested by fainting. 9. Entitlement to service connection for chest pains. 10. Entitlement to service connection for a disability of the bilateral forearms. 11. Entitlement to service connection for bilateral shin splints. 12. Entitlement to service connection for a left shoulder disability. 13. Entitlement to service connection for residuals of stress fractures on the feet. 14. Entitlement to service connection for plantar warts. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to July 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2000, June 2002, October 2009, and August 2010 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs) in Atlanta, Georgia, and Milwaukee, Wisconsin. In the May 2000 rating decision, the RO, in relevant part, denied entitlement to service connection for hemorrhoids, fainting, forearm pain, chest pains, shin splints, bilateral intermittent hip pain, pes planus, stress fracture residuals, bilateral retropatellar syndrome, plantar warts, and a left shoulder disability. In the June 2002 rating decision, the RO granted service connection for a bilateral knee condition, and assigned a 10 percent disability rating for each knee, effective July 5, 2001. In the October 2009 rating decision, the RO granted service connection for medial and lateral collateral ligament laxity of the left and right knee, as associated with his prior service-connected bilateral knee disabilities, for bilateral trochanteric bursitis of the left and right hip, and for bilateral plantar fasciitis, to include pes planus and bilateral tibiotalar dysfunction/malalignment; and assigned each disability a 10 percent disability rating, effective July 23, 2007. The RO additionally redesignated the Veteran's prior service-connected knee disabilities as degenerative joint disease of the right and left knee. In the August 2010 rating decision, the RO determined that CUE was not committed in any prior final rating decision. In an October 2012 rating decision, the RO determined that the May 2000 rating decision was erroneous for denying service connection for bilateral pes planus. Consequently, the RO assigned a new effective date of July 20, 1999, for the award of service connection for bilateral pes planus. The issues of entitlement to service connection for hemorrhoids, a disability manifested by fainting, bilateral forearm disabilities, chest pains, bilateral shin splints, stress fracture residuals of the feet, plantar warts, and a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. On the record at a Board hearing, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal as to the issue of entitlement to an effective date prior to July 23, 2007, for the award of service connection for bilateral plantar fasciitis, to include pes planus and bilateral tibiotalar dysfunction/malalignment. 2. In May 2001, the Veteran submitted a timely notice of disagreement with the May 2000 rating decision that denied, inter alia, entitlement to service connection for bilateral knee and hip disabilities. 3. Because the Veteran timely appealed the denial of his claimed bilateral knee and hip disabilities, the May 2000 rating decision is rendered non-final. 4. The June 2002 rating decision that awarded service connection for a bilateral knee condition did not consider the Veteran's timely notice of disagreement with the prior May 2000 rating decision that denied entitlement to service connection for his claimed knee disabilities, and to that extent was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's claim of entitlement to an effective date prior to July 23, 2007, for the award of service connection for bilateral plantar fasciitis, to include pes planus and bilateral tibiotalar dysfunction/malalignment, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The June 2002 rating decision that assigned an effective date of July 5, 2001, for entitlement to service connection for a bilateral knee condition; was clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 5110(b)(1), 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 3.400, 20.201, 20.1403 (2013). 3. The criteria for an effective date of July 7, 1999, for the award of service connection for trochanteric bursitis of the left hip have been met. 38 U.S.C.A. §§ 5101(a), 5110, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b) (2013). 4. The criteria for an effective date of July 7, 1999, for the award of service connection for trochanteric bursitis of the right hip have been met. 38 U.S.C.A. §§ 5101(a), 5110, 7105; 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b). 5. The criteria for an earlier effective date of July 7, 1999, for the award of service connection for medial and lateral collateral ligament laxity of the left knee have been met, including on the basis of CUE in the June 2002 rating decision. 38 U.S.C.A. §§ 5101, 5110(a), 7105; 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b). 6. The criteria for an effective date of July 7, 1999, for the award of service connection for medial and lateral collateral ligament laxity of the right knee have been met, including on the basis of CUE in the June 2002 rating decision. 38 U.S.C.A. §§ 5101(a), 5110, 7105; 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b). 7. The criteria for an effective date of July 7, 1999, for the award of service connection for degenerative joint disease of the left knee have been met, including on the basis of CUE in the June 2002 rating decision. 38 U.S.C.A. §§ 5101(a), 5110, 7105; 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b. 8. The criteria for an earlier effective date of July 7, 1999, for the award of service connection for degenerative joint disease of the right knee have been met, including on the basis of CUE in the June 2002 rating decision. 38 U.S.C.A. §§ 5101(a), 5110, 7105; 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); Pub.L. 112-154, § 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. § 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). II. Withdrawal of Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by a claimant or by an authorized representative. 38 C.F.R. § 20.204 (2013). At the Board hearing held on May 7, 2013, prior to the promulgation of a decision in his appeal, the Veteran stated on the record that he was satisfied with the effective date assigned in the October 2012 rating decision for his service-connected bilateral plantar fasciitis disability, and as such, that he was withdrawing his appeal as to that issue. Accordingly, the Veteran has withdrawn this claim and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Therefore, the Board does not have jurisdiction to review this issue and it is dismissed. III. Earlier Effective Dates The Veteran contends that an earlier effective date for the award of service connection for his service-connected knee and hip disabilities is warranted back to the day following his separation from service. The Veteran indicated in his original July 1999 claim that he was seeking service connection for retropatellar pain syndrome and for intermittent hip pain. He has since indicated, however, that when he filed his claim, he was not sure what disabilities he had, only that he knew he had problems with his hip and knees, including pain. His claim must be construed as encompassing a knee disability regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). With respect to bilateral knee laxity specifically, he clarified during his May 2013 hearing that his knee would give out and that he had been given a brace for this problem even during the time of his service. He insinuated that all current knee findings should have been found during the September 1999 VA examination which he contended was erroneously conducted. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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); 38 C.F.R. § 3.400(2013). If a claim for disability compensation, i.e., service connection, is received within one year after separation, the effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b) (West 2002); 38 C.F.R. § 3.400(b)(2) (2013). The proper effective date for petitions to reopen a claim based on the receipt of new and material evidence, other than service department records, received after a final denial is the date of receipt of the petition to reopen or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i) (West 2002); 38 C.F.R. §§ 3.400(q)(2), 3.400(r) (2013). In this scenario, the petition to reopen is treated as an original claim for the purposes of establishing an effective date. If, however, evidence, other than service department records, is received within the one year appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. §§ 3.400(q)(1), 20.302(a), 20.1103 (2013). Similarly, if a claimant files a notice of disagreement (NOD) within one year of the final rating decision, the rating decision cannot, at that point, be rendered final. 38 C.F.R. § 20.302 (2013). "Whenever a claimant expresses dissatisfaction following rating or other adjudicative action," the Agency of Original Jurisdiction (AOJ) should determine "whether there has been procedural, regulatory, or factual error in adjudication or other circumstances warranting further development or corrective action. Unless it is determined that there is entitlement to substantially all benefits sought, the Veteran should be furnished VA Form [9] ..., together with the necessary instructions relative to its completion, without effort to dissuade [the claimant] from the presentation of a formal appeal." Myers v. Principi, 16 Vet. App. 228 (2002) Here, the Veteran filed an original claim for entitlement to service connection for, inter alia, bilateral retropatellar pain syndrome and bilateral intermittent hip pain in July 1999. These claims were denied in the May 2000 rating decision. Notably, however, the Veteran submitted a statement in May 2001, within one year of the issuance of the May 2000 rating decision, wherein he expressed his disagreement with how his September 1999 VA examination was conducted. He requested a new examination at that time. This communication expresses dissatisfaction with the adjudication of his claim and a desire for appellate review of his claims was, thereby, conveyed. He furthermore clarified during his May 2013 Board hearing that by means of his May 2001 statement, it was his intention to express disagreement with the May 2000 rating decision that denied these service connection claims. The Veteran's May 2001 statement is a timely NOD with the May 2000 rating decision that denied entitlement to service connection for his claimed knee and hip disabilities. See 38 C.F.R. § 20.201 (2013); see also Gallegos v. Gober, 14 Vet. App. 50 (2000) (finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). Under these circumstances, in the proper course of action, the AOJ would have issued the Veteran a statement of the case (SOC) in response to this NOD. See 38 U.S.C. § 7105(d) (West 2002); see also Myers, supra. Under 38 U.S.C.A. § 7105, an SOC is required to include a summary of the evidence in the case pertinent to the issue in question, a citation to pertinent laws and regulations and a discussion of how the agency's decision was effected by the laws and regulations, and a decision on each issue, including a summary of the reason for each decision. Here, the required SOC was not issued in response to the Veteran's May 2001 NOD. Accordingly, the Veteran's claims for service connection for bilateral knee and hip disabilities remained open since his initial claim was filed in July 2000 until final disposition of the claims in the June 2002 and October 2009 rating decisions. IV. CUE The Veteran contends that CUE was committed in prior rating decisions that considered his service connection claims bilateral knee and hip disabilities. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2013); see also Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005). A request for CUE may be made at any time after a decision is made on a claim; however, that decision must be final and not under appeal. See 38 U.S.C.A. §§ 5109A; 7105(c) (unappealed decision by RO is final) (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.1100(a), 20.1103 (2013). The United States Court of Appeals for Veterans Claims (Court) has established a three-prong test defining CUE. These are: (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 adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (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). "In order for there to be a valid claim of [CUE], ...[t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). Thus, an asserted failure to correctly evaluate and interpret the evidence is not clear and unmistakable error. See Id.; Damrel, 6 Vet. App. at 245-246. Rather, "[CUE] is a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where 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, [CUE]." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (emphasis in the original). The failure to fulfill the duty to assist cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). Considering first whether the May 2000 rating decision, that initially denied the Veteran's claims for service connection for bilateral knee and hip disabilities, may be found to be clearly and unmistakably erroneous, the Board has determined that that rating decision was not final. As the principles of CUE only apply to a final rating decision, the Board cannot make a finding that the May 2000 rating decision was clearly and unmistakably erroneous. See 38 U.S.C.A. §§ 5109A; 7105(c); 38 C.F.R. §§ 20.1100(a), 20.1103. Turning, however, to the June 2002 rating decision, which again considered the Veteran's claim for service connection on the merits, the RO granted service connection for a bilateral knee condition in that, and assigned an effective date of July 5, 2001 for each knee disability, based on a submission of additional medial evidence. After a review of the record, the Board finds that the June 2002 rating decision was clearly and unmistakably erroneous with regard to the assignment of the effective date. In reviewing the record as it existed at the time of the June 2002 rating decision, the Board again observes that a May 2001 statement from the Veteran was of record in which he expressed his disagreement with the denial of service connection for, inter alia, a knee disability in the May 2000 rating decision. Existent regulations at the time of the June 2002 rating decision provide that "[a] written communication form a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by that agency of original jurisdiction and a desire to contest the result with constitute a Notice of Disagreement." 38 C.F.R. § 20.201 (2001). Moreover, the Court's holding in Gallegos, 14. Vet. App. 50, clearly established that finding that a claimant's statement constitutes an NOD simply requires finding terms that can be reasonably construed as a desire for appellate review. In light of the foregoing, the Veteran's May 2001 statement clearly indicates his desire for review of the prior May 2000 rating decision that considered and denied his service connection claims. Based on this record, the Board finds that the extant regulatory provisions and relevant case law at the time of the June 2002 rating decision were incorrectly applied with respect to the assignment of the effective date for the Veteran's service-connected bilateral knee disabilities. See Damrel, 6 Vet. App. at 245. Upon review of the record, the Board finds that undebatable error was committed in the assignment of an effective date for the Veteran's knee disabilities. Moreover, if not for this error the outcome of the Veteran's assigned effective date would have been manifestly different, in that his effective date would extend back to the day after his separation from service, as he filed his original claim within one year of his separation. See id; see also 38 U.S.C.A. § 5110(b)(1). Accordingly, based on the presence of CUE in the June 2002 rating decision, and the pending claim, an effective date of July 7, 1999, is warranted for all of the current service-connected knee disabilities. In reaching this determination, the Board intimates no opinion as to the proper rating assignment for any of the service-connected knee disabilities. Resolving all reasonable doubt in the Veteran's favor, the Board finds that an earlier effective date is warranted for the award of service connection for the Veteran's degenerative joint disease of the right and left knee, medial and lateral collateral ligament laxity of the right and left knee, and trochanteric bursitis of the right and left hip. Accordingly, the Board finds that an earlier effective date of July 7, 1999, the day following the Veteran's separation from service, must be granted for the award of service connection for these disabilities. In reaching this determination, the Board notes that the Veteran's July 1999 claim was received within one year of his separation from service. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). ORDER The claim of entitlement to an effective date prior to July 23, 2007, for the award of service connection for bilateral plantar fasciitis, to include pes planus and bilateral tibiotalar dysfunction/malalignment, is dismissed. An earlier effective date of July 7, 1999, is granted for the award of service connection for trochanteric bursitis of the left hip. An earlier effective date of July 7, 1999, is granted for the award of service connection for trochanteric bursitis of the right hip. An earlier effective date of January 7, 1999, is granted for the award of service connection for medial and lateral collateral ligament laxity of the left knee. An earlier effective date of July 7, 1999, is granted for the award of service connection for medial and lateral collateral ligament laxity of the right knee. An earlier effective date of July 7, 1999, is granted for the award of service connection for degenerative joint disease of the left knee. An earlier effective date of July 7, 1999, is granted for the award of service connection for degenerative joint disease of the right knee. REMAND The Veteran testified during his May 2013 Board hearing that he intended his May 2001 statement as a notice of disagreement with the claims of entitlement to service connection for hemorrhoids, a disability manifested by fainting, bilateral forearm disabilities, chest pains, bilateral shin splints, stress fracture residuals of the feet, plantar warts, and a left shoulder disability. Accordingly, the Board is required to remand these issues for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). In remanding these claims, the Board notes that while July 2008 and June 2009 rating decisions determined that new and material evidence had not been received to reopen claims of entitlement to service connection for residuals of stress fractures of the feet and bilateral forearm/hand conditions, the previous claim remained pending until a statement of the case was issued. Tablazon v. Brown, 8 Vet. App. 359, 360 (1995). Accordingly, these claims are REMANDED for the following action: Issue a statement of the case with respect to the issues of entitlement to service connection for hemorrhoids, a disability manifested by fainting, bilateral forearm disabilities, chest pains, bilateral shin splints, stress fracture residuals of the feet, plantar warts, and a left shoulder disability. These issues should not be certified to the Board unless the Veteran perfects an appeal by submitting an adequate substantive appeal on any or all of these issues. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs