Citation Nr: 1753950 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-18 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Whether there was clear and unmistakable error (CUE) in a July 1976 rating decision assigning an initial noncompensable rating for left knee chondromalacia (left knee disability). 2. Entitlement to an effective date prior to October 24, 2011 for the assignment of a 10 percent rating for a service-connected left knee disability. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2012 and April 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2017, the Veteran testified at a Board hearing conducted via video-conference before the undersigned Veterans Law Judge. During this hearing, the Veteran and his representative argued that in a September 2012 statement, the Veteran expressed his disagreement with the increased rating assigned in an April 2012 rating decision, as he believes the severity of his left knee disability entitles him to an even higher rating. However, upon review of this September 2012 statement, as well as an earlier May 2012 statement, the Board finds that both statements expressly disagree only with the effective date assigned for the increased rating, and not with the assigned increased rating itself. Accordingly, neither statement may reasonably be construed as a notice of disagreement with regard to the assigned rating, thereby necessitating the issuance of a related statement of the case. 38 C.F.R. § 20.201 (2012). Thus, in order to seek such an increased rating, the Veteran must file an increased rating claim, which the record reflects the Veteran indeed filed the day after his Board hearing. FINDINGS OF FACT 1. The Veteran did not timely initiate an appeal of the July 1976 rating decision that assigned an initial noncompensable rating for his service-connected left knee disability, nor was any evidence relevant to the claim associated with the record within the year following the issuance of this decision, thereby tolling its finality. 2. There was no formal or informal increased rating claim filed between the date of issuance of the July 1976 rating decision and the submission of the October 2011 increased rating claim. 3. There is no medical or lay evidence of record dated within the year prior to the receipt of the October 2011 increased rating claim that establishes a factually-ascertainable increase in the Veteran's left knee severity. 4. The motion alleging CUE in the July 1976 rating decision is insufficiently pled, as there have not been any specific arguments advanced that the facts, as they were known at the time, were not before the RO, or that the statutory or regulatory provisions in effect at the time were incorrectly applied, or that the results would have been manifestly different, but for the alleged error in the final July 1976 rating decision. CONCLUSIONS OF LAW 1. The motion alleging CUE in the July 1976 rating decision's assignment of an initial noncompensable rating for a left knee disability is dismissed. 38 U.S.C. §§ 5109A, 5121A (West 2012); 38 C.F.R. § 3.105(a) (2017). 2. The criteria for the award of an effective date prior to October 24, 2011 for the grant of a 10 percent rating for a service-connected left knee disability have not been met. 38 U.S.C. §§ 5107 , 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The current effective date assigned for the 10 percent rating awarded for the Veteran's service-connected left knee disability is October 24, 2011, the date of receipt of the Veteran's corresponding increased rating claim. However, the Veteran asserts that he is entitled to an earlier effective date commensurate with the date of receipt of his formal service connection claim (December 1, 1975). The Veteran further asserts that the RO's assignment of an initial noncompensable rating effective as of December 1, 1975, as reflected in a July 1976 rating decision, was the product of clear and unmistakable error (hereinafter referred to as CUE), as he was discharged with a 20 percent left knee disability and therefore should have been rated at that level. The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In this case, the evidence fails to reflect a basis for awarding an effective date prior to October 24, 2011, the date of receipt of the Veteran's increased rating claim, for the award of a 10 percent rating for his left knee disability. At the outset, the Board notes that the Veteran filed his initial service connection claim for a left knee disability in December 1975 (over a year after his discharge from service in August 1974), and this claim was adjudicated in a July 1976 rating decision, at which time the RO granted service connection for a left knee disability and awarded an initial noncompensable rating effective as of the date of receipt of the Veteran's formal service connection claim. The Veteran does not report, and the record does not reflect, that he initiated an appeal of this rating decision within the year following its issuance. Further, no evidence relevant to the claim was associated with the claims file within that year, so as to toll the finality of the decision. Accordingly, the July 1976 rating decision is final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Furthermore, the Veteran does not report, and the record does not reflect, that he submitted any statements or evidence prior to October 24, 2011 that reference his left knee disability, which could therefore be construed as an increased rating claim or report of increased left knee symptomatology. Accordingly, there are no documents of record received prior to October 24, 2011, that may be construed as an earlier, pending increased rating claim that could serve as the basis for awarding an earlier effective date. See 38 C.F.R. § 3.400(o)(1). Moreover, there is no medical or lay evidence of record that reflects a factually ascertainable increase in the Veteran's left knee disability, so as to serve as a basis for awarding an earlier effective date. In this regard, the Veteran has reported receiving treatment for his left knee disability solely from VA medical facilities, and the Veteran's VA treatment records reflect that he first received treatment for a (non-knee related) emergent matter in January 2011, established primary VA treatment care in April 2011, and first reported a left knee impairment in November 2011, after he had filed his increased rating claim in October. Based on the lack of medical evidence reflecting a factually ascertainable increase in the Veteran's left knee disability at any time in the year prior to the receipt of his increased rating claim, the Board concludes that the record fails to reflect a basis for awarding an effective date for the 10 percent left knee disability rating prior to October 24, 2011 pursuant to 38 C.F.R. 3.400 (o)(1)(2). Given the foregoing, the Board concludes that the only available means for establishing an earlier effective date requires a determination that the June 1976 rating decision's assignment of an initial noncompensable rating for his left knee disability was the product of CUE. In this regard, the Veteran asserts that the RO erred in assigning an initial noncompensable rating at this time, as he had been advised upon his discharge from service in 1973 that his left knee was 20 percent disabling, and his left knee symptoms had not improved in 1976 when he was awarded a 0 percent rating. An unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in the decision. Where evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7105(c); 38 C.F.R. § 3.105 (a). CUE is a very specific and rare kind of error. The Court of Appeals for Veterans Claims (Court) has held that for there to be a valid claim of CUE either the correct facts, as they were known at that time, were not before the adjudicator or the legal provisions effective at that time were improperly applied; a mere difference of opinion in the outcome of the adjudication does not provide a basis to find that VA committed error during the adjudication process. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). The failure to address a specific regulatory provision involves harmless error unless it is shown that the outcome would have been "manifestly different." Fugo v. Brown, 6 Vet. App. 40, 44 (1993). The Court has held that, "[i]f a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Id. Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity, and only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). While the Veteran asserts that the July 1976 rating decision's assignment of an initial noncompensable rating for his left knee disability was the product of CUE, he has not identified any incorrect facts relied upon in the rating decision, nor has he asserted that the legal provisions effective at that time were improperly applied. Rather, he asserts that the RO's failure to adequately consider assessments of his left knee disability upon his discharge from service resulted in the erroneous assignment of a noncompensable rating. Thus, the Veteran essentially contends that while the July 1976 rating decision considered the correct facts and applied the correct law to those facts, the facts should have been weighed differently, with more weight afforded the assessments of the severity of his left knee disability upon his discharge from service. However, as set forth above, a mere difference of opinion in the outcome of the adjudication does not provide a basis to find that VA committed error during the adjudication process. Accordingly, the Board concludes that the Veteran's CUE claim has been inadequately pled, and the appropriate remedy is dismissal of the claim without prejudice, rather than denial, in order to allow the claimant an opportunity to refile. See Simmons v. Principi, 17 Vet. App. 104, 111-15 (2003). ORDER An effective date prior to October 24, 2011 for the assignment of a 10 percent rating for a service-connected left knee disability is denied. The claim asserting CUE in the July 1976 rating decision's assignment of an initial noncompensable rating for a service-connected left knee disability is dismissed without prejudice to refiling. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs