Citation Nr: 1743640 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 12-10 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to an effective date prior to August 5, 2003, for the grant of service connection for a neck disability and a back disability. Whether there the November 1971 and March 1978 rating decisions contained clear and unmistakable error ("CUE"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active duty service from September 1968 through August 1971. This appeal comes to the Board of Veterans' Appeals ("Board") from an October 2010 rating decision by the Department of Veterans Affairs ("VA") Appeals Management Center ("AMC"), in Washington, D.C. Jurisdiction of the matter presently resides with the Regional Office ("RO") in San Diego, California (hereinafter Agency of Original Jurisdiction ("AOJ")). In pertinent part, the October 2010 rating decision granted the Veteran entitlement to service connection for disabilities of his back and neck. The AMC additionally assigned a 20 percent evaluation for the neck disability, and a 10 percent evaluation for the back disability, both effective August 5, 2003, the date the Veteran's claims for entitlement to service connection was received. Following this grant of service connection, the Veteran submitted a November 2010 notice of disagreement, where he expressed dissatisfaction with the effective dates of entitlement. Specifically, the Veteran argued the effective dates for the awards of service connection should be retroactive to his initial application for entitlement, on August 26, 1971. Thereafter, the Veteran perfected his appeal to the Board. In October 2015, the Board remanded the Veteran's claims to the AOJ for further development. Specifically, the Board requested that the AOJ consider the Veteran's allegations of CUE concerning a November 1971 rating decision and a March 1978 Administrative Decision, which had denied the Veteran's claims of entitlement to service connection for a back and neck disability. In November 2015, the AOJ issued a Supplemental Statement of the Case ("SSOC"), where it found no evidence of CUE in either the November 1971 rating decision and a March 1978 Administrative Decision. The Board therefore finds the requested development has been completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has previously testified at a Travel Board Hearing before a Veterans Law Judge in July 2015. A transcript of the hearing has been reviewed and associated with the Veteran's claims file. Subsequent to this hearing, the Veterans Law Judge who conducted the July 2015 hearing retired. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 C.F.R. § 20.207. Therefore, the Veteran was offered a new hearing in a letter dated in March 2017. In a letter dated March 28, 2017, the Veteran responded that he did not desire a new hearing, and requested the Board to take jurisdiction over the issues on appeal. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In a November 1971 rating decision, the AOJ denied the Veteran's claim for entitlement to service connection for a back disability. The Veteran was notified of this decision and his appellate rights in a letter dated December 6, 1971, which was mailed to the Veteran's then current address of record. The Veteran did not appeal that decision, and it became final. 2. In a March 1978 rating decision, the AOJ denied the Veteran's claim for entitlement to service connection for a back disability, to include a neck injury. The Veteran was notified of this decision and his appellate rights in an Administrative Decision, which was mailed to the Veteran's then current address of record on March 16, 1978. The Veteran did not appeal that decision, and it became final. 3. The Veteran has failed to set forth sufficient errors of fact or law, or establish that the result would have been manifestly different but for the alleged errors as it pertains to the rating decisions issued in November 1971 and August 1978. 4. Subsequent to the November 1971 and March 1978 decisions, there are no claims formal or informal to reopen service connection for a neck and back disability until August 5, 2003. CONCLUSIONS OF LAW 1. The criteria for the award of an earlier effective date, prior to August 5, 2003, for entitlement to service connection for a back disability have not been met. 38 U.S.C.A. §§ 5110, 5111 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400, 20.302, 20.1103 (2016). 2. The criteria the award of an earlier effective date, prior to August 5, 2003, for entitlement to service connection for a neck disability have not been met. 38 U.S.C.A. §§ 5110, 5111 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400, 20.302, 20.1103 (2016). 3. The motions for revision based on CUE in the November 1971 and March 1978 rating decisions are denied. 38 U.S.C.A. §§ 5101, 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). The Veteran's claim for entitlement to an earlier effective date, for the award of entitlement to service connection for a back and neck disability, is considered a "downstream" element of the AOJ's grant of service connection. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As for the Veteran's claim of entitlement to an earlier effective date, on the basis of CUE, the Board observes that the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed in RO decisions (See Parker v. Principi, 15 Vet. App. 407 (2002), regarding Board CUE See Livesay v. Principi, 15 Vet. App. 165 (2001)). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran was afforded the opportunity to appear and testify before a Veterans Law Judge in July 2015. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. As noted in the introduction, the Veteran was afforded an opportunity to testify at a second hearing before the undersigned VLJ. However, the Veteran declined and expressed a desire for the appeal to be transferred to the Board. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). General Laws and Regulations Governing Entitlement to Earlier Effective Dates: In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation 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 the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (emphasis added); see also Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. § 3.1(r), 3.4000. Specifically, with respect to a grant of service connection following the receipt of new and material evidence received subsequent to a prior denial, governing regulation provides that the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q) and (r). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C.A. §§ 5101, 5110; 38 C.F.R. § 3.400. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA's processes. However, the period under consideration in this case is prior to March 24, 2015. Therefore, a description of the state of the law of claims prior to that date is in order and is for application. Prior to March 2015, a "claim" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim had not been filed, the AOJ would forward an application form to the claimant for execution. If the AOJ received a complete application from the claimant within one year from the date it was sent, then the AOJ would consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2016). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.400(o)(2). Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. Finally, the Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on CUE. The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date. Flash v. Brown, 8 Vet. App. 332 (1995). That being the relevant, generalized law, applicable to the Veteran's appeal, the Board will now discuss the merits of the Veteran's arguments. In arguing for the assignment of an earlier effective date for the award of service connection, for both the back and neck disabilities, the Veteran advances several additional theories of entitlement. First, the Veteran argues that his award of service connection should be retroactive to the date his first applied for disability benefits. See e.g. November 2010 Notice of Disagreement. Second, the Veteran argues that he did not receive the November 1971 Rating Decision which denied his initial claim for service connection of his back disability. See July 2015 Hearing Testimony. Subsequently, the Veteran, through his representative, has argued that he additionally did not receive the March 1978 Administrative Decision, which denied his claim of entitlement to service connection for a neck disability, and continued the prior denial of service connection for a back disability. See March 2017 Appellant Brief. Due to the non-receipt of these AOJ determinations, the Veteran argues that neither the November 1971 rating decision nor the March 1978 Administrative Decision became final. Included within the Veteran's argument that neither the November 1971 rating decision nor the March 1978 Administrative Decision became final, is an allegation that the AOJ did not meet its burden to properly notify the Veteran of the reasons for the denials. Specifically, the Veteran, through his representative, argues that the AOJ did not meet its burden to notify the Veteran of his denied claim for entitlement to service connection for a back disability in November 1971. The Veteran argues that the notice letter issued by the AOJ, did not state that the Veteran's back claim had been denied. See e.g. July 2015 Hearing Transcript. Third, the Veteran argues that the November 1971 rating decision and the March 1978 Administrative Decision contained clear and unmistakable error in denying his claims for entitlement to service connection for a back and neck injury. In support of this argument, the Veteran contends that the AOJ did not correctly apply the applicable presumptions, for combat Veteran's and for chronic disabilities, for entitlement to service connection. See e.g November 2010 Notice of Disagreement. i. Entitlement to an Earlier Effective Date, Prior to August 5, 2003, for the Award of Service Connection for a Back and Neck Disability: The Veteran is seeking entitlement to an earlier effective date, prior to August 5, 2003, for his award of entitlement to service connection for a back and neck disability. A review of the Veteran's claims file indicates that, in a November 1971 rating decision, the Veteran's claim for entitlement to service connection for a back disability was denied. The AOJ reviewed the Veteran's service treatment records and the report of an October 1971 examination in making its determination. Based upon this evidence, the AOJ denied the Veteran's claim for service connection for a back disability because of a lack of a current disability. Thereafter, in November 1977, the Veteran submitted a written statement which was accepted as a claim for service connection of a back disability as related to his service-connected right knee disability. In support of his claim, the Veteran submitted an October 1977 medical report from his private physician, Dr. G.G., which showed the Veteran had an acute strain to the paravertebral muscles and ligaments, with radiculitis into the lumbar plexus. In light of this evidence, and with consideration of the Veteran's lay symptoms, the AOJ afforded the Veteran with an updated VA examination in January 1978. A review of this examination indicates the examiner considered and recorded the Veteran's reports of symptoms and limitations, but that the objective evidence of record did not show any evidence of a back disability. In March 1978, the RO issued a rating decision, which confirmed the previous denial of service connection for a back disability on the basis that there was no evidence of a back disability or a relationship between the Veteran's claimed back disability and his knee disability. Subsequent to the November 1971 and March 1978 rating decisions, the Veteran did not submit any new medical evidence or lay statements sufficient to reopen his claims until August 5, 2003. A review of the Veteran's correspondence, dated August 5, 2003, shows he submitted a letter in which he specifically alleged a nexus between his current back impairment and his in-service 1970 combat injury. In addition to this lay report, the Veteran submitted medical evidence which showed a current neck and back disability, and suggested at a potential nexus between the Veteran's current disabilities and his active duty service. Specifically, this evidence showed the Veteran had been diagnosed with degenerative disc disease and osteopenia of the lumbar spine, with possible degenerative changes in his cervical spine. See VA outpatient treatment records dated October 2003, October 2004, and December 2004. This submission of new evidence met the standard for new and material evidence, as it addressed an element of service connection that was previously lacking. As noted above, at the time of the March 1978 rating decision, the Veteran's claim was denied as there was no evidence showing (1) a current disability and (2) a nexus between the Veteran's symptoms and his in-service injuries. As such, the Veteran's claim for entitlement to service connection for a back and neck disability was reopened based on the submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2003). Therefore, the Board finds that August 5, 2003 represents the earliest possible date for an award of service connection for both the back and neck disabilities. Applying the regulations discussed above, the effective date for a grant of service connection following a prior a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2016). If entitlement arose prior to August 5, 2003, the date the application to reopen was received, then, August 5, 2003 is the later date and the appropriate effective date; if entitlement arose after August 5, 2003, then the Veteran is still not entitled to an effective date earlier than August 5, 2003, as the effective date should be the later of the date of receipt of claim or the date entitlement arose. As such, the AOJ assigned the earliest possible effective date for its grant of entitlement to service connection for a back and neck disability. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). In conclusion, the Board finds that August 5, 2003 is the earliest possible date for which the Veteran is entitled to an award of service connection for a back and neck disability. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). ii. Receipt and Finality of the November 1971 Rating Decision and the March 1978 Administrative Decision: In statements to the Board, the Veteran contends he did not receive either the November 1971 rating decision or the March 1978 Administrative Decision, which denied his claims of entitlement to service connection. See e.g. July 2015 Hearing Testimony. The Veteran contends that this amounted to a failure on behalf of the AOJ to assist the Veteran in developing his claim, as he was not provided with the necessary information describing his ability to appeal the unfavorable decisions. Due to this failure, and non-receipt, the Veteran contends that neither the November 1971 rating decision nor the March 1978 Administrative Decision are final. As to the Veteran's claim that he did not receive either the November 1971 Rating Decision or the March 1978 Administrative Decision, the Board finds this argument is without merit. Specifically, there is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in mailing notice. See Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992)(quoting United States v. Chem. Found, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926). In order for the presumption to attach, VA must mail notice to the latest address of record. See Ashley, 2 Vet. App. at 309. While Ashley concerned the mailing of a Board decision, the same law applies to mailing of notice of an RO decision. See Mindenhall v. Brown, 7 Vet. App. 271 (1994); see also Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992). To rebut this presumption, the appellant, in addition to asserting non-receipt, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. See Ashley, 2 Vet. App. at 309. Absent the production of such clear evidence, delivery is proven. If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to VA to establish proper mailing of notice in accordance with the applicable case law. See Baxter v. Principi, 17 Vet. App. 407, 410 (2004). Whether clear evidence exists to rebut the presumption of administrative regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). An assertion of non-receipt, standing alone, does not rebut the presumption of regularity in VA's mailing process. See Jones v. West, 12 Vet. App. 98, 102 (1998). Instead, the clear evidence requirement mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery, as not all address errors rise to the level of clear evidence to rebut the presumption of administrative regularity in the mailing of notice. See Santoro v. Principi, 274 F.3d 1366, 1370 (Fed. Cir. 2001). First, as applied to the Veteran's claim of non-receipt of the November 1971 rating decision, the Board finds the Veteran's allegation, standing alone, does not rebut the presumption of regularity. A review of the evidentiary record indicates the AOJ notified the Veteran of his denied claim for service connection in a letter dated December 6, 1971. According to the copy of the notice letter, VA properly sent the December 6, 1971 correspondence to the then current address of record. There is no evidence that this December 6, 1971 mailing was returned to the AOJ as undeliverable. The Veteran's assertion alone is insufficient to rebut the presumption of regularity in VA's mailing process. See 38 U.S.C.A. § 5104(a); see also Kyhn v. Shinseki, 716 F.3d 572, 577 (Fed. Cir. 2013). The Veteran, through his attorney, has additionally argued that the AOJ failed to recognize or mail the November 1971 rating decision to the Veteran's updated address of record. See e.g. March 2017 Appellant Brief. However, the Board does not find this allegation sufficient to rebut the presumption of regularity. The AOJ mailed the Veteran, to his then current address of record, a notice of denial on December 6, 1971. Thereafter, on December 21, 1971, the Veteran contacted the AOJ to alert them of a change to his address. This change of address was dated after the Veteran had been mailed the notice informing him that his claim for entitlement to service connection for a back disability had been denied. And, as noted above, there is no evidence that this December 6, 1971 mailing was returned to the AOJ as undeliverable. Second, the Board finds no evidence which substantiates the Veteran's claim that the November 1971 rating decision, and the December 6, 1971 notification letter, did not include a specific denial of the Veteran's application for entitlement to service connection for a back disability. A review of the Veteran's claims file shows the AOJ created a November 17, 1971 rating decision, which denied the Veteran's claim of to a back disability. In denying this claim, the AOJ explained an October 1971 VA examination of the Veteran's back failed to identify any specific impairment or disability. This November 1971 rating decision, however, granted the Veteran entitlement to service connection for residual intra-articular shrapnel wound to the right knee with medial meniscectomy and for scars of residual shell fragment wounds on the left leg. The right knee was assigned a 20 percent evaluation, and the left leg was given a non-compensable rating. After the issuing the November 17, 1971 rating decision, the AOJ created a VA Form 21-6798, known as a Disability Award Worksheet, dated on November 22, 1971. An explanation of the worksheet, the meaning of its parts, and a description of duties relating to the preparation of awards and disallowances can be found in the version of M21-1 in effect at the time that the AOJ rendered its November 1971 rating action. Specifically, in 1971, the M21-1 stated that the worksheet served served as the written communication between RO adjudicators and the group known as "Input," who processed awards. See M21-1, Pat IV, Chapter 15, paragraphs 3, 26, and 27 (January 5, 1966). The Input group was responsible for typing, sending, and making copies of the rating decision and notice letters on a magnetic strip to be sent to the Hines Data Processing Center ("DPC") for storage. See M21-1, Pat IV, Chapter 15, paragraphs 27 and 27, Chapter 16, paragraphs 2 and 3, and Chapter 23, paragraph 11. The worksheet provided the typists with critical information about each case in a standard format. Id. As applied to the Veteran's case, the November 22, 1971 Disability Award Worksheet completed by AOJ noted at line 15 that a rating decision had been prepared on November 17, 1971. The worksheet indicated that service connection had been awarded for a right knee disability, and that a 20 percent evaluation had been assigned. The worksheet additionally identified two additional conditions of "scars to left leg" and "back cond." in the remarks section. Although specific instruction was not provided as to whether these impairments were granted service connection, the AOJ included a reference to the November 1971 rating decision, which clearly found the Veteran was not entitled to an award of service connection for a back disability. Furthermore, the Input group was to complete a VA Form 20-822, Control Document and Award form, and a Form 21-6782, Original Disability Compensation letter. The VA Form 21-6782 in use in November/December 1971 included areas to notify claimants of what conditions had been found to be service connected and what conditions had not been found to be service connected. The address listed on the Disability Award worksheet was the current address indicated by the Veteran, "Ferrara Way." While a While a copy of a VA Form 21-6782 is not of record, a VA Form 20-822 dated December 6, 1971, is contained in the claims folder. Proper administrative practice at that time included filing only a copy of the VA Form 20-822 in the appellant's claims folder, but not the attachments, such as the Original Disability Compensation letter, the VA Form 21-6782. See M21-1, Part IV, Chapter 16, paragraphs 2 and 3. The M21-1 further notes that the Disability Award worksheet, or VA Form 21-6798, serves as a record of the attachments mailed to the Veteran. Id. Therefore, based upon the evidentiary record and review of the of M21-1 in effect at the time, the Board finds sufficient evidence to conclude that the Veteran was notified of that his claim for entitlement to service connection for a back disability had been denied. Therefore, with consideration of the above analysis, the Board finds sufficient evidence demonstrating that the AOJ notified the Veteran that his claim for entitlement to service connection for a back disability was denied. The Board finds this December 6, 1971 notice letter was mailed to the Veteran's current address of record, and that the AOJ did not receive any indication that the correspondence was returned as undeliverable by the Post Office. Furthermore, the Board finds the December 6, 1971 letter properly notified the Veteran that his claim for service connection for a back disability was denied. Turning next to the Veteran's allegation of non-receipt of the March 16, 1978 Administrative Decision, the Board finds no evidence to substantiate this claim. As explained above, the Veteran's assertion alone is insufficient to rebut the presumption of regularity in VA's mailing process. See 38 U.S.C.A. § 5104(a); see also Mindenhall, 7 Vet. App. at 274-75. Here, a review of the record shows the March 16, 1978 Administrative Decision was mailed to the Veteran's then current address of record. Additionally, the file contains an second letter, dated March 13, 1978, which was mailed to the Veteran's then current address of record, informing him that his claim for service connection for a back disability was denied. See March 1978 VA Form 20-8993. There is no evidence that either mailing was returned to the AOJ as undeliverable. As such, the Veteran is presumed to have received the March 16, 1978 Administrative Decision and the March 13, 1978 VA Form 20-8993. In regards to the content of these March 1978 notice letters, the Board finds sufficient evidence to conclude that the Veteran was appropriately notified that his claims for entitlement to service connection for a neck and back disability were denied. In the version of the M21-1 effective at the time of the March 16, 1978 Administrative Decision, notice procedures, such as the type described above for the November 1971 denial, are not required. See M21-1, Part IV, Chapter 16, paragraph 3 (June 24, 1977). Rather, the notice procedures require that "the claimant and all other interested persons will be furnished a full and adequate explanation, sufficient to enable the recipient to understand the reason(s) for the actions taken." Under Chapter 16, paragraph 4, the M21-1 states that a VA Form 21-103 should be prepared and mailed to the Veteran in cases where a prior disallowance is being confirmed. A review of the March 16, 1978 Administrative Decision shows that it was printed on a VA Form "FL 21-103, JUN 1977 (RS)." As such, the Board finds this correspondence confirms to the notice and processing requirements of the M21-1 effective at the time. Furthermore, this March 16, 1978 Administrative Decision indicates that the Veteran was denied entitlement for service connection because "the evidence does not show an associative relationship between your back condition and your service-connected knee condition." This Administrative Decision, included a formal letter titled "Notice of Procedural and Appellate Rights," which advised the Veteran of his ability to appeal the denial by submitting additional evidence or a notice of disagreement. See M21-1, Part IV, Chapter 18, paragraph 2. The Board further finds this March 16, 1978 Administrative Decision included an express denial of the Veteran's claims for entitlement to service connection, for both a back and neck condition. Although generalized language was used in the March 16, 1978 Administrative Decision, the deferred rating decision, dated March 3, 1978, clearly identifies both the Veteran's allegations for a back and neck injury. Specifically, the AOJ explained that a recent examination of the Veteran, dated January 1978, showed no evidence of a disability or impairment in either the Veteran's cervical or lumbar spines. A radiograph of both the cervical and lumbar spines showed no evidence of any fractures, dislocations, or subluxation. The rating decision further observes that a physical examination revealed no evidence of muscle spasms within the Veteran's neck, shoulders, or lower back, and that he maintained a normal posture and full active range of motion. Furthermore, the Board observes that in the Veteran's November 10, 1977 informal claim for entitlement to service connection, the Veteran stated only that "my back condition" is due to his in-service injury and/or secondary to his service-connected right knee disability. It was only during the January 1978 VA examination that the Veteran expressly identified symptoms within his neck and cervical spine. As such, the Board finds the AOJ's referenced to "back condition" to encompass the totality of the Veteran's alleged symptoms and impairments, to include a neck and cervical spine impairment. Moreover, the March 13, 1978 correspondence, identified by VBMS as a VA Form 20-8993, notified the Veteran that both the VA examination from January 1978 and private medical records, dated October 1977, were considered in denying the Veteran's claim. The Board finds this additional March 13, 1978 correspondence met the notification requirements as described under the M21-1, Part IV, Chapter 16, paragraph 3. Therefore, with consideration of the above analysis, the Board finds sufficient evidence demonstrating that the AOJ notified the Veteran that his claim for entitlement to service connection for a back disability, to include the neck, was denied. The Board finds the March 16, 1978 Administrative Decision was mailed to the Veteran's current address of record, and that the AOJ did not receive any indication that the correspondence was returned as undeliverable by the Post Office. Similarly, the Board finds the March 13, 1978 letter was mailed to the Veteran's current address of record, and that the AOJ did not receive any indication that the correspondence was returned as undeliverable by the Post Office. Furthermore, the Board finds both the March 13th and March 16th 1978 correspondence letters properly notified the Veteran that his claim for service connection for a back disability, to include the neck, was denied. The Board next turns to the Veteran's allegations that neither the December 6, 1971 notification letter nor the March 16, 1978 Administrative Decision, even if received, satisfied VA's duty to notify the Veteran of his right to appeal. As an initial matter, the Board observes that the notice requirements were considerably different at the time of the November 1971 and March 1978 denials, as the Veterans Claims Assistance Acts of 2000 had not been enacted. There was no statute in existence which enumerated what VA was required to provide the Veteran with notice of and/or what duties were owed to the Veteran. Rather, applicable regulations enacted at the time of the Veteran's claims required that VA notify a claimant as to whether their claim had been authorized or denied. See 38 C.F.R. § 3.103 (1971 and 1977)(noting that the 1978 revision of the C.F.R. was not enacted until July 1, 1978). Furthermore, the regulations required that these notice letters "include the reason for the decision, the claimant's right to initiate an appeal by filing a notice of disagreement and the time limits within such notice should be filed. Id. With respect to the December 6, 1971 notification letter, the Board observes, and as explained in greater detail above, that the required notice letter, the VA Form 21-6782 was not included as part of the Veteran's claims file. As such, the Board cannot assess based on review of the actual document whether or not this letter explained the Veteran's right to appeal his denial and the time limits with which to do so. However, the Board finds that under the presumption of regularity the notice letter was compliant with extant regulations. Moreover, as explained above, the VA Form 21-6782 at use in December 1971 was required to include an explanation as to why a claim for service connection was denied. See M21-1, Part IV, Chapter 16, paragraph 3 (January 5, 1966). Therefore, based upon the presumption of administrative regularity, the Board finds that the Veteran was provided with the proper notice that explained why his claim for service connection of a back disability was denied. Having determined that the AOJ is presumed to have acted with regularity in furnishing the Veteran a copy of the VA Form 21-6782 in December 1971, the Board must determine whether this form satisfied the notice requirements in effect at the time. Of note, the Board acknowledges that regulations effective at the time the December 1971 notification letter was sent specify that: While it is contemplated that the agency of original jurisdiction will give proper notice of the right to appeal and the time limit, failure to notify the claimant of his right to such appellate review or of the time limit applicable to a notice of disagreement or substantive appeal will not extend the applicable period for taking this action. 38 C.F.R. § 19.310 (1971). Therefore, even if the December 1971 notification letter did not advise the Veteran of his right to appeal, and the time limit within to do so, this does not extend the time limit within which the Veteran is required to file an appeal or submit new evidence. As such, the Board finds that the December 1971 notification letter provided the Veteran with adequate notice, as considered under the applicable regulations, of his denial for entitlement to service connection for a back disability. As applied to the March 16, 1978 Administrative decision, the Board observes this letter included an attachment titled "Notice of Procedural and Appellate Rights," which clearly alerted to the Veteran to his right to appeal, the time frame to do it within, and the right to submit new evidence. Therefore, the Board finds this March 16, 1978 correspondence letter fully satisfied the AOJ's duty to assist and alert the Veteran. See 38 C.F.R. § 3.103 (1977); see also See M21-1, Part IV, Chapter 18, paragraph 2 (June 24, 1977). Finally, there is no evidence that the Veteran filed a timely NOD following issuance of either the November 1971 Rating Decision and/or the March 1978 Administrative Decision. Additionally, the record does not indicate that the Veteran submitted any new and/or material evidence sufficient to reopen these denials within the prescribed period. 38 U.S.C.A. §§ 3001, 3003, 3010 (1971 and 1976); 38 C.F.R. § 3.156 (1971 and 1977). As such, the Board finds these denials became final. 38 U.S.C.A. § 4005(1971 and 1976); 38 C.F.R. § 3.104, 19.110, 19.153 (1971 and 1977). iii. Whether the November 1971 Rating Decision and/or the March 1978 Administrative Decision Contained CUE: The Veteran additionally alleges entitlement to an earlier effective date, for the award of entitlement to service connection for a back and neck disability, on the basis of CUE. Specifically, the Veteran contends that the AOJ did not properly apply the combat presumption for awards of service connection during the November 1971 and the March 1978 rating decisions. The Veteran additionally alleges that the VA examiner, who administered the October 1971 examination, did not properly consider the Veteran's allegations and reported symptoms. Finally, the Veteran contends that the non-receipt of the November 1971 rating decision and the March 1978 Administrative decision constituted CUE. However, as will be discussed below, the Board does not find that the Veteran has established a valid claim of CUE in either the November 1971 and the March 1978 rating decisions. VA regulations allow for the revision of a prior AOJ decision, such as a rating decision, where the evidence establishes "clear and unmistakable error" or CUE. 38 C.F.R. § 3.105(a). For CUE to exist: (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 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)). An assertion of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Therefore, a [veteran] who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a [veteran] who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). 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." See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To constitute CUE, errors must be "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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). In Evans v. McDonald, the Court defined CUE, as follows: Clear and unmistakable error is established when the following conditions are met: First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Hillyard v. Shinseki, 24 Vet.App. 343, 349 (2011). Finally, the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Russell, 3 Vet. App. at 313-14; see Bustos v. West, 179 F.3d 1378, 1380 (Fed.Cir.1999) (expressly adopting "manifestly changed the outcome" language in Russell); see also King v. Shinseki, 26 Vet. App. 433, 442 (2014) ("Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging [CUE] to succeed. The governing law requires that the error be 'undebatable' and that the commission of the alleged error must have 'manifestly changed the outcome' of the decision." (citing Russell, 3 Vet. App. at 313-14)). 27 Vet. App. 180, 185 (2014). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be of fact or of law, and 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 CUE. Allegations that previous adjudications had improperly weighed and evaluated the evidence also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43-44. The Board also notes that any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). In order to show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). As applied to the Veteran's appeal, the Board finds no evidence of CUE in either the November 1971 Rating Decision or the March 1978 Administrative Decision. First, the Board finds the Veteran's argument of non-receipt of either the November 1971 or the March 1978 rating decisions does not constitute CUE. Rather, this is an argument that the decision did not become final. As discussed in great detail above, the Board finds this argument is without merit. Second, as to the Veteran's allegation that the October 1971 VA examiner failed to consider the Veteran's lay allegations, the Board finds this amounts to an allegation that the VA examination was inadequate. The Board notes that the adequacy of a VA examination falls under the duty to assist. Failure in the duty to assist cannot constitute CUE. Crippen v. Brown, 9 Vet.App. 412, 418 (1996); Caffrey v. Brown, 6 Vet.App. 377, 383-84 (1994); Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002). Third, as to the Veteran's contention that the AOJ incorrectly applied the combat provision, the Board finds this is inaccurate and does not amount to a claim for CUE. As an initial matter, the Board observes that the Veteran served during a period of war, and that he engaged in combat with enemy. See e.g. August 5, 2003 Statement from the Veteran, describing the September 1970 in-service attack; see also October 2006 Lay Statement from W.G., the Veteran's former platoon leader, and March 2008 Lay Statement from R.W., the Veteran's former troop commander, describing the September 1970 in-service explosion. As such, the Board finds the Veteran engaged in combat with the enemy. VA regulations, enacted at the time the Veteran applied for entitlement to service connection for a back disability in August 1971, provide a relaxed standard of proof for combat Veterans: Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d) (1971). However, this regulation does not state that a veteran is entitled to an award of service connection for a disease or injury simply because the Veteran engaged in combat. Rather, this regulation aides a veteran by relaxing the evidentiary requirements for determining what happened in service. The Veteran must still establish his claim by competent evidence showing a current disability and nexus between that disability and service. See Gregory v Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). Specifically, the Veteran was still required to show competent and credible evidence of a (1) current disability and (2) a nexus to his active duty service. As explained above, the Veteran's claim for entitlement to service connection was denied in November 1971 for a lack of a current disability. Thereafter, the Veteran's claim for service connection for a back and neck disability were denied for a lack of a current disability, and a lack of a nexus between the reported symptoms and the Veteran's active duty service. Furthermore, the Board finds the Veteran's argument, that the AOJ failed to apply a lower evidentiary burden under 38 C.F.R. § 3.304(d), amounts to an argument about the weighing of evidence, which can never be CUE. See 38 C.F.R. § 20.1403(d). The Board has considered the decision of Reeves v. Shinseki, 682 F. 3d 988 (Fed. Cir. 2012), but finds the facts in the present case are distinguishable. In that case, the appellant argued that the Veteran, who was in receipt of medals confirming combat service, was exposed to acoustic noise during service and that his hearing loss had developed during service. Reeves, 682 F. 3d at 990-91. The Board denied the claim for hearing loss without citing to U.S.C.A. § 354(b), which was the applicable provision for combat Veterans at the time. Reeves, 682 F. 3d at 998. VA argued that because the Board conceded acoustic noise exposure, that omission was not CUE. Reeves, 682 F. 3d at 988. As noted by the Court, 38 U.S.C.A. § 354 (b) was enacted as it was realized that soldiers would sometimes be unable to seek treatment in combat situations, and even if they did, the records may not survive such conditions. Reeves, 682 F. 3d at 997-98. The Court found that it was CUE for the Board to not have discussed 38 U.S.C.A. § 354 (b) as it ignored the assertion of the presence of hearing loss during service. Reeves, 682 F. 3d at 999-1000. Reeves is distinguishable for several reasons. The most significant difference is that the Veteran's combat experience, and his allegations of sustaining in-service injuries as a result of this combat, were clearly considered by the AOJ in the November 1971 and March 1978 rating decisions. An examination of the evidence considered by the AOJ included an October 1971 VA examination and a January 1978 VA examination, which describe in great detail the Veteran's history of combat exposure and in-service reports of injuries. However, even after acknowledging the Veteran's combat experience, his claims for service connection were denied in November 1971 and in March 1978 for a lack of a current disability. Therefore, based upon the above analysis, the Board finds the Veteran has failed to adequately set forth the alleged errors of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error, the CUE motion as it pertains to the claim for an effective date earlier than August 3, 2005, for the award of entitlement to service connection for a back and neck disability. As such, the Veteran's claim of CUE as applied to the November 1971 or the March 1978 rating decisions must be denied. ORDER Entitlement to an effective date prior to August 5, 2003, for the grant of service connection for a for a back and neck disability, is denied. Entitlement to revision based on CUE in the November 1971 and March 1978 rating decisions is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs