Citation Nr: 1628743 Decision Date: 07/19/16 Archive Date: 07/28/16 DOCKET NO. 07-40 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether there is clear and unmistakable error in a February 1981 rating decision that denied service connection for bronchial asthma. 2. Whether there is clear and unmistakable error in a November 1993 rating decision determining that new and material evidence to reopen a claim for service connection for asthma had not been received. 3. Entitlement to an effective date earlier than April 15, 2002 for the award of service connection for asthma. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active service from September 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2007 and October 2008 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2010, the Board remanded the instant claims. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand orders with regard to the instant claims and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the Veteran has been represented by several attorneys and Veterans Service Organizations during the course of this appeal. In March 2008, the Veteran submitted a VA Form 21-22a (Appointment of Individual as Claimant's Representative) designating attorney Theodore Jarvi as his representative. In March 2014, the Veteran submitted a VA Form 21-22 (Appointment of Veteran Service Organization (VSO) as Claimant's Representative) in which he designated the Pennsylvania Department of Military and Veterans Affairs as his representative. He submitted a VA Form 21-22a appointing attorney Richard Palmatier as his representative. Thereafter, in April 2016, the Veteran submitted another VA Form 21-22a appointing attorney Ralph Bratch as his representative. The Board recognizes this change in representation. With regards to the characterization of the appeal, the Board notes that the Veteran's former attorney has specifically argued that there was CUE in a February 1981 rating decision. Such arguments were considered by the AOJ in its January 2014 supplemental statement of the case. The Board has therefore recharacterized the appeal to more appropriately reflect the Veteran's contentions. FINDINGS OF FACT 1. A final rating decision dated in February 1981 and issued in June 1981 denied service connection for bronchial asthma. 2. In determining that service connection for bronchial asthma was not warranted, the February 1981 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. 3. The Veteran filed a petition to reopen a claim for service connection for bronchial asthma on January 29, 1993, which was denied in a rating decision dated in November 1993 and issued in December 1993. 4. The Veteran filed a timely notice of disagreement in October 1994 disagreeing with the rating decision dated in November 1993 and issued in December 1993. 5. The Veteran was not provided with a statement of the case for the October 1994 notice of disagreement; therefore, finality did not attach to the rating decision dated in November 1993 and issued in December 1993. 6. As the Veteran's effective date of January 29, 1993, for the award of service connection for asthma is being assigned herein, the Veteran's claim of CUE in a November 1993 rating decision is moot. CONCLUSIONS OF LAW 1. The rating decision dated in February 1981 and issued in June 1981 that denied service connection for bronchial asthma is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. The rating decision dated in February 1981 and issued in June 1981 that denied service connection for bronchial asthma was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2015). 3. There being no justiciable case or controversy, the Veteran's request for revision or reversal of the November 1993 rating decision on the basis of CUE is dismissed. 38 U.S.C.A. § 7105 (West 2014). 4. Resolving reasonable doubt in favor of the Veteran, the criteria for an effective date of January 29, 1993, for the grant of service connection for bronchial asthma have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156, 3.157, 3.400, 19.118 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. As regards to the Veteran's earlier effective date claim, as is explained in more detail below, the Board is granting the claim to the fullest extent legally permissible-namely, January 29, 1993; hence all necessary notice and development to fairly adjudicate the claim has been accomplished. Further, as this date has been identified by the Veteran as the appropriate effective date, this decision represents a full grant of benefits sought on appeal; hence, no discussion is needed as to whether an effective date earlier than January 29, 1993 is warranted. Relevant to the duty to assist, the Board notes that relevant medical evidence was reviewed by the AOJ in connection with the adjudication of the Veteran's increased rating claim. However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of request to reopen a claim for service connection for asthma, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the record. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a 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, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the April 2010 remand directives by readjudicating the claim of entitlement to an effective date prior to April 15, 2002, for the grant of service connection for asthma, to include whether there was CUE in a November 1993 rating decision that initially denied the claim, as applicable to the instant claims, and, as such, that no further action is necessary in this regard. See D'Aries, supra. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Finally, with regard to the Veteran's allegation of CUE in the prior February 1981 and November 1993 rating decisions, the Board finds that the VCCA does not apply to such aspect of the Veteran's claims as a matter of law. The Court has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). II. Analysis The Veteran contends that the denial of his original claim for service connection for asthma in the February 1981 rating decision was clear and unmistakable error as the AOJ did not properly consider and apply the statutory presumptions of soundness and aggravation. In a February 2014 submission, the Veteran's former attorney argued that the AOJ improperly found that the Veteran was not sound on service entry, that the evidence of record was legally insufficient to rebut the presumption of soundness and that the Veteran's condition "unquestionably progressed during service." Therefore, the Veteran contends that an effective date of November 18, 1980, the date VA received his original claim for service connection for asthma, is warranted. A. Finality of the February 1981 Rating Decision As an initial matter, the Board finds that the February 1981 rating decision that denied service connection for bronchial asthma is final. In this regard, rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In the instant case, in June 1981, the Veteran was advised of the decision and his appellate rights. The Veteran did not file a notice of disagreement with respect to this decision. As such, the February 1981 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for bronchial asthma was received prior to the expiration of the appeal period stemming from the February 1981 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board has also considered the applicability of 38 C.F.R. § 3.156(c) as it appears that the Veteran's service personnel records were received subsequent to the February 1981 rating decision. In this regard, such provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. While the Veteran's service personnel records contain a record of the nature of his service, such evidence was previously of record at the time of the February 1981 rating decision in the form of his DD-Form 214. Therefore, such newly received service department records are duplicative of the evidence previously considered in connection with the February 1981 rating decision. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the February 1981 rating decision need not be reconsidered. B. CUE in the February 1981 Rating Decision 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 clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). 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). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating 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. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither 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 that 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, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Under the law extant in February 1981, service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 310, 311 (West 1980). A person claiming VA benefits had to meet an initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). For purposes of determining whether a claim was well grounded, the truthfulness of the supporting evidence was presumed. King v. Brown, 5 Vet. App. 19, 21 (1993). In addition to the regulations governing entitlement to service connection outlined above, the law provides that a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto. See 38 U.S.C.A. § 311 (West 1980). A preexisting disease or injury will be considered to have been aggravated by service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service, 38 U.S.C. § 353 (1980); 38 C.F.R. § 3.306 (1980). Additionally, as noted, a CUE claim must be based on the evidence in the record when the prior decision was rendered. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). In reviewing all of the evidence on file, the Board finds no clear and unmistakable error of fact or of law in the RO's February 1981 rating decision with respect to the denial of service connection for bronchial asthma. The evidence before the RO in February 1981 was duly considered in the rating decision and included the Veteran's service treatment records. An August 1987 service entrance examination found the Veteran's lungs and chest to be normal and he denied having, or that he ever had, asthma or shortness of breath in accompanying Report of Medical History (RMH). An August 1970 treatment record reflects the Veteran's complaints of congestion and tightness in the chest as well as his reports of having bronchitis for years while a second August 1970 treatment record reflects the Veteran's reports of having had bronchitis since he was two years old. A December 1970 Report of Medical Board indicates that the Veteran had a history of wheezing and bronchitis since age two, that he had been treated since August 1970 for various degrees of bronchospasm and that a diagnosis of allergic asthma was made. The Medical Board found that the Veteran's diagnosed disability existed prior to enlistment and was not aggravated by military service and recommended that he be administratively discharged. Based on the foregoing, the RO found that the evidence of record showed that the Veteran's asthma existed prior to service and was not aggravated by service. Therefore, service connection for bronchial asthma was denied. In the instant case, the Board finds that there is no CUE in the RO's denial of service connection for bronchial asthma in the February 1981 rating decision. Specifically, in determining that service connection for bronchial asthma was not warranted, the February 1981 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. The Board finds that the February 1981 decision was factually supportable by the record at that time, and both the positive and negative evidence of record were acknowledged. It is apparent that the adjudicator reviewed the service treatment records in making a determination as to entitlement to service connection. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. In the instant case, the Veteran and his former attorney are essentially claiming CUE based on the evaluation of the evidence by the RO. Specifically, the Veteran and his former attorney argue that there the evidence cited by the AOJ in the February 1981 rating decision was not legally sufficient to justify its conclusions and that there were no statement from the Veteran indicating that he had asthma prior to service when rendering its decision. However, a disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995); Russell, supra. In this regard, the Veteran's primary contention is that the AOJ's consideration of the Veteran's service entrance examination, the August 1970 complaint of bronchitis, a chest clinic evaluation and examination and a Medical Board report were not legally sufficient to justify its conclusion that the presumption of soundness had been rebutted. The Federal Circuit has held that "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination ... must be presumed to have been reviewed by the Department of Veterans Affairs, and no further proof of such review is needed." The Federal Circuit explicitly rejected the view that all evidence must be discussed; i.e., that an adequate "review" of the record did not require an explanation in the RO decision of the impact or lack thereof of every piece of evidence of record. Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000). Moreover, the Veteran's arguments appear to be tantamount to a disagreement with how the facts were weighed by the adjudicator in February 1981. In this regard, the Veteran appears to suggest that a proper review or weighing of the service treatment records would substantiate a claim for service connection for bronchial asthma. However, as previously stated, disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen, supra; Russell, supra. This argument is therefore without merit. The Veteran's former attorney also argues that the doctor's annotation cited in the February 1981 rating decision refers to a different condition, namely bronchitis, than the Veteran's claimed condition of asthma. The former attorney also argues that the doctor's annotation and statement should not have been considered by the AOJ in its February 1981 rating decision under 38 C.F.R. § 3.304(b)(3) (1980). However, the Board notes that the AOJ considered service connection for bronchial asthma in its February 1981 rating decision and that any statements regarding the onset of such condition would be relevant to the Veteran's claim. Further, the Board notes that the provisions of 38 C.F.R. § 3.304(b)(3) (1980) apply to signed statements of the veteran relating to the origin, or incurrence of any disease or injury made in service if against his interest is of no force or effect if other data did not establish if other data do not establish this fact. The statements in the service treatment records at issue here are not signed statements of the Veteran but rather reflect his reports of medical history to treatment providers made during the course of treatment. This argument is therefore without merit. The Veteran's former attorney next argues that the AOJ erred by relying on the findings of the Medical Board as it did not apply the strict evidentiary standard of clear and unmistakable evidence of a preexisting condition to which VA is bound and that there was no requirement that the Army Medical Boards observe VA's evidentiary standard. The Veteran's former attorney cited to Miller v. West, 11 Vet. App. 345 (1998), which held that a report in the service records that a condition existed prior to service that is unsupported by any contemporaneous clinical evidence or recorded evidence was not clear and unmistakable evidence sufficient to rebut the presumption of soundness, in support of this argument. However, the representative's reliance on Miller in support of the claim for CUE is misplaced. The Board notes that a determination of CUE must be based on the record and law that existed at the time of the prior adjudication in question, here the February 1981 rating decision. See Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. The Court's decision in Miller was rendered in 1998, many years after the issuance of the February 1981 rating decision. This argument is therefore without merit. Next, the Veteran's former attorney argues that the AOJ failed to properly consider and apply the presumption of aggravation and the provisions of VAOPGCPREC 3-2003 (July 16, 2003) and the Court's holding in Horn v. Shinseki, 25 Vet. App. 231, 242 (2012). However, the February 1981 rating decision specifically found that the Veteran's preexisting asthma was not aggravated by service. The Board must interpret this stated finding that the rating board was aware of the presumption of aggravation. Further, the fact is that the AOJ specifically referenced the December 1970 Report of Medical Board finding concerning service aggravation, and determined in the rating decision that the Veteran's asthma existed prior to service and was not aggravated by his active service. The fact that the AOJ did not specifically state the presumption of aggravation of soundness, or use the term, clear and unmistakable, is not an indication that the rating board did not in fact apply the correct standard. However, the requirement for the RO to provide a detailed statement of reasons and bases was not applicable at the time of the challenged decision. Natali v. Principi, 375 F.3d 1375 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Joyce v. Nicholson, 19 Vet. App. 36 (2005) (in general for the proposition that because the law prior to the enactment of the Veterans' Benefits Amendments of 1989 did not require VA to set forth in detail the factual bases for its decisions; nor provide in depth discussion of applicable law, the failure to do so was not clear and unmistakable legal error at the time of such decisions, and the adjudicators were presumed to have made the requisite findings under a presumption of validity). Moreover, the representative's reliance on VAOPGCPREC 3-2003 and Horn in support of the claim for CUE are misplaced. The Board notes that a determination of CUE must be based on the record and law that existed at the time of the prior adjudication in question, here the February 1981 rating decision. See Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. The Court's decision in Horn was rendered in 2012 while VAOPGCPREC 2-2003 was issued in 2003, many years after the issuance of the February 1981 rating decision. This argument is therefore without merit. Further, to the extent that the Veteran and/or his former attorney allege that VA violated its duty to assist by failing to properly determine the "baseline" severity of the claimed condition, failure to fulfill the duty to assist cannot be CUE. Baldwin v. West, 13 Vet. App. 1, 5 (1999). A Federal Circuit decision held that a failure to give a Veteran a proper medical examination did not constitute a grave procedural error. Cook v. Principi, 258 F.3d 1311 (Fed. Cir. 2001). Even if the error were not "grave and procedural," the deficiencies in the examination only leave an incomplete record rather than an incorrect one and are thus not CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, it is not certain that this evidence would have clearly and undebatable changed the outcome. See Damrel, supra; Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997). Finally, the Board notes that the Veteran's former attorney submitted affidavits from the Veteran and his mother in March 2009 suggesting that the Veteran was not diagnosed with bronchitis or asthma prior to service. However, such evidence was not of record at the time of the February 1981 rating decision and cannot be used to substantiate a finding of CUE in that rating decision. In light of the foregoing, the Board concludes that the correct facts, as known at the time, were before VA adjudicators who denied the claim for service connection and that the statutory and regulatory provisions extant at the time were correctly applied. The Board finds that there was no error which was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Accordingly, the claim for CUE in the February 1981 rating decision must be denied for the aforementioned reasons. C. CUE in November 1993 Rating Decision The Board notes that the Veteran and his former attorney have also alleged that there was CUE in a rating decision dated in November 1993 and issued in December 1993. However, as the Board is finding that the November 1993 rating decision was not final herein, and that an effective date of January 29, 1993 for the award of service connection is warranted, any claim of CUE in the November 1993 rating decision is now moot. Furthermore, CUE claims are reserved for final decisions only. Where the decision has not become final, no CUE claim can be entertained. Link v. West, 12 Vet. App. 39, 44 (1998) (holding that a CUE claim does not exist, as matter of law, where there is no prior final RO decision). III. Earlier Effective Date In a June 2007 submission, the Veteran contends that he filed a notice of disagreement with the November 1993 rating decision and that this rating decision was not final. He therefore requests an earlier effective date for the award of service connection for asthma. The Board agrees. A notice of disagreement must be a written communication from a claimant or the representative expressing dissatisfaction with an adjudicative determination of a Regional Office. The notice of disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording. 38 C.F.R. § 19.118. Based on a liberal interpretation of the Veteran's October 1994 written statement to VA, the Board finds it to have been a timely notice of disagreement to the rating decision dated in November 1993 and issued in December 1993. See Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute a notice of disagreement under the law), rev'd sub nom Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (an effective notice of disagreement need not contain any magic words or phrases). The Veteran was not provided a statement of the case. The Court has held that the proper remedy is to vitiate the finality of a decision where the Veteran did not receive a statement of the case. See e.g., Hauck, 6 Vet. App. at 519. The time for appealing either an RO or a Board decision does not run if VA failed to provide information or material critical to the appellate process. See Tablazon v. Brown, 8 Vet. App. 359 (1995). The Veteran is correct by stating that the rating decision dated in November 1993 and issued in December 1993 is not final. The Veteran filed a notice of disagreement in October 1994, which was within the statutory one year period, disagreeing with the December 1993 rating decision that declined to reopen service connection for bronchial asthma. The AOJ did not issue a statement of the case after the Veteran's filing of this notice of disagreement. Id. (VA did not furnish the Veteran with a statement of the case, he was unable to file a "formal appeal" with the Board and the RO rating decision did not become final). The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. After review of the lay and medical evidence of record, the Board finds that the effective date for service connection for asthma should be January 29, 1993, the date the Veteran filed the claim to reopen service connection. ORDER The rating decision dated in February 1981 and issued in June 1981 that denied service connection for bronchial asthma was not clearly and unmistakably erroneous, and the appeal is denied. The claim as to whether there was CUE in the November 1993 rating decision determining that new and material evidence to reopen a claim for service connection for asthma had not been received is dismissed as moot. An earlier effective date of January 29, 1993 for service connection for bronchial asthma is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs