Citation Nr: 1757167 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 17-43 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in an April 2017 Board decision that denied entitlement to an earlier effective date for the grant of service connection for a lumbar spine disability, service connection for right and left lower extremity radiculopathy, and service connection for a scar on the lower back prior to August 21, 2014. 2. Whether there was CUE in a final June 1953 rating decision that denied service connection for a lumbar spine disorder. 3. Whether there was CUE in a final May 1973 rating decision that denied reopening the claim for service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Coast Guard from August 1946 to August 1949, and in the U.S. Army from September 1949 to October 1952. In May 2017, the moving party in this case, the Veteran, filed a claim for revision of the previous final regional office rating decisions dated in June 1953 and May 1973 based on CUE. In June 2017, the RO denied the claims for CUE. A notice of disagreement (NOD) was filed in July 2017 and the RO issued a statement of the case (SOC) that same month. In August 2017, the Veteran filed a substantive appeal and indicated that he did not want a hearing before the Board. Upon review of the record, and for the reasons discussed in detail below, the Board is reversing the April 2017 Board decision on its own CUE motion. Notably, a Board decision may be reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C.A. §§ 5109A (a), 7111(a) and (c). Moreover, as the Board is granting the relief sought by the Veteran regarding the effective dates of his claims, his CUE motions filed in May 2017 are rendered moot by the Board's decision herein. Bernard v. Brown, 4 Vet. App. 384, 294 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An April 2017 Board decision denied the Veteran's appeal seeking earlier effective dates prior to August 21, 2014, for the grant of service connection for a lumbar spine disability, service connection for right and left lower extremity radiculopathy, and service connection for a scar on the lower back on the basis that the appropriate effective date was the date of the claim to reopen service connection following the final April 1973 rating decision. 2. The Board applied incorrect laws and regulations at the time of the April 2017 decision at the time of its denial of the appeal; had such error of law not been made it would have manifestly changed the outcome in the appeal based on the record and law that existed at the time. 3. On October 12, 1972, the Veteran underwent a laminectomy resulting in a lower back linear surgical scar and left lower extremity radiculopathy. 4. In August 2010, the Veteran began having radiculopathy symptoms in the right lower extremity. 5. As the Board is granting the relief sought by the Veteran regarding the effective dates of his claims, his CUE motions filed in May 2017 are rendered moot by the Board's decision herein. CONCLUSIONS OF LAW 1. Reversal of the April 2017 Board decision denying the Veteran's appeal seeking earlier effective dates for the grant of service connection for a lumbar spine disability, service connection for right and left lower extremity radiculopathy, and service connection for a scar on the lower back on the basis that it was clearly and unmistakably erroneous is warranted. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. § 20.1403 (2017). 2. The effective date for the award of service connection for the lumbar spine disability is October 11, 1952. 38 U.S.C.A. § 5110 (b)(1) (West 2014); 38 C.F.R. § 3.400 (b)(2)(i) (2017). 3. The effective date for the award of service connection for a scar on the lower back is October 12, 1972. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (b)(2)(i) (2017). 4. The effective date for the award of service connection for left lower extremity radiculopathy is October 12, 1972. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (b)(2)(i) (2017). 5. The effective date for the award of service connection for right lower extremity radiculopathy is August 1, 2010. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (b)(2)(i) (2017). 6. The motion for CUE in a June 1953 rating decision that denied service connection for a lumbar spine disorder is dismissed as moot. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2017). 7. The motion for CUE in a May 1973 rating decision that denied reopening the claim for service connection for a lumbar spine disorder is dismissed as moot. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C.A. §§ 5109A (a), 7111(a), (c). CUE is defined as the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error; generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). A review for CUE in a prior Board decision must be based on the record and the law as it existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). CUE does not include a change in medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Further, the doctrine of the favorable resolution of reasonable doubt is not applicable in determinations of whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a). As noted above, the Board has raised CUE on its own motion; as such, there is no requirement by the Veteran to raise CUE with requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). In 1949, the Veteran filed an original service connection claim for a back disorder. In October 1949, the RO informed him that no action would be taken on his claim because he had re-entered service. Subsequently, after discharge from service in 1952, the RO issued a rating decision in June 1953 that denied the claim. He did not appeal. In December 1972, the Veteran filed a claim to reopen service connection for back disorder. The RO denied the claim to reopen in April 1973. Later that month, he filed a NOD against the decision. In response, the RO issued an SOC in May 1973. He did not file a subsequent substantive appeal. On August 21, 2014, the Veteran again claimed service connection for back disorder. In the March 2015 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) reopened the claim and granted service connection for a lumbar spine disability and for secondary disabilities - bilateral lower extremity radiculopathy and lower back scar. The AOJ based this decision to grant service connection on a March 2015 VA medical nexus opinion indicating that the present lumbar spine disability and associated neurological symptomatology and scar tissue were related to lumbar spine surgery in 1973, which related to the back disability first incurred in service. In particular, the March 2015 VA examiner indicated that service treatment records dated in 1948 addressed the back injury and hospitalization, while a 1951 service treatment record noted complaints of continuing back problems. The AOJ awarded an effective date of August 21, 2014, the date of the most recent claim to reopen service connection. Upon review of the record, the Board finds that relevant service treatment records (to include the 1951 record noting complaints of continuing back problems) were not of record at the time of the June 1953 rating decision. Specifically, the RO did not have service treatment records pertaining to the Veteran's second period of active service between 1949 and 1952. These service treatment records, however, were included in the claims file at the time of the April 1973 rating decision. The service treatment records pertaining to the second period of service, between 1949 and 1952, were date stamped as received by the RO in July 1955. In April 2017, the Board denied entitlement to an earlier effective date prior to August 21, 2014, as it found that the applicable law and regulations concerning effective dates were the proper avenue in deciding the claim. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (the effective date of an evaluation and 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). The Board's decision in April 2017 to use 38 C.F.R. § 3.400 to adjudicate the Veteran's claim for an earlier effective date was improper given the facts in evidence at the time of the April 2017 decision. Specifically, the decision incorrectly found that the June 1953 rating decision had become final, which allowed the effective dates to be based on the Veteran's claim to reopen service connection for the lumbar spine disability. However, under 38 C.F.R. § 3.156(c)(1), an exception is provided to the general rule detailed under 38 C.F.R. § 3.400 regarding effective dates in claims to reopen service connection. 38 C.F.R. § 3.156(c)(1) provides that notwithstanding any other section of 38 C.F.R. Part 3, 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 38 C.F.R. § 3.156 (a)(concerning the requirement to reopen a previously finally denied claim with new and material evidence). Therefore, given that service treatment records were received after the June 1953 rating decision, the RO should have readjudicate/reconsidered the claim in May 1973 (instead of denying the claim to reopen service connection). Therefore, the June 1953 rating decision did not become final, and the original claim for service connection remained pending. This AOJ's error in not correctly applying 38 C.F.R. § 3.156(c)(1) was mirrored by the Board in its April 2017 decision. In this regard, at the time of the April 2017 Board decision, the evidence showed that service treatment records were received after the June 1953 rating decision; as such, 38 C.F.R. § 3.156(c)(1) should have applied with the June 1953 rating decision not becoming final. As such, this was an error of law in the adjudication of the appeal in April 2017. Notwithstanding, for the April 2017 Board decision to warrant reversal based on CUE, not only must have there been an error of law in the adjudication of the appeal, but such error must also have been such that had it not been made, it would have manifestly changed the outcome. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable 38 C.F.R. § 20.1403(c). A "manifest change in the outcome of the adjudication means that, absent the alleged clear and unmistakable error, the benefit sought would have been granted at the outset." King v. Shinseki, 26 Vet. App. 433, 441 (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 clear and unmistakable error to succeed. Id. at 441. At the time of the April 2017 decision, the evidence on file established that the Veteran had a current lumbar spine disability. Further, the March 2015 VA medical nexus opinion was also of record and indicated that the present lumbar spine disability and associated neurological symptomatology and scar were related to lumbar spine surgery in 1973, which related to the back disability first incurred in service. In particular, the March 2015 VA examiner indicated that service treatment records dated in 1948 addressed the back injury and hospitalization, while a 1951 indicated complaints of continuing back problems. Therefore, the March 2015 VA nexus opinion based its findings, in pertinent part, on the 1951 service treatment record that was received after the June 1953 rating decision. Consequently, the correct facts, as well as the laws and regulations in effect at the time of the April 2017 decision, established that the Veteran was entitled to an earlier effective date for the grant of service connection for a lumbar spine disability. Specifically, he was entitled to an effective date of October 11, 1952, (the day following separation from service). See 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i) (if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service). The Board also finds that reasonable minds could not differ as to this conclusion; it is undebatable that the June 1953 rating decision was not final and that the grant of service connection for a lumbar spine disability was based, at least in part, on service treatment records received after the June 1953 rating decision; as such, the Veteran was entitled to an effective date of October 11, 1952, for the grant of service connection at that time. Accordingly, the April 2017 Board decision was the product of CUE, and requires revision. In addition, the April 2017 Board decision also denied earlier effective dates for the Veteran's bilateral lower extremity radiculopathy and scar. As the Board has now granted an effective date of October 11, 1952, for the lumbar spine disability, the neurological and scar disability effective dates must also be considered. Regarding the Veteran's lumbar surgical scar, the appropriate effective date is October 12, 1972 (the date of the Veteran's laminectomy), which resulted in a "mild lower back healed linear surgical incision." See March 2015 VA examination report. This is the earliest possible effective date assignable under the circumstances of this case as the date is the latest of the date of claim or date entitlement arose. As for the right and left lower extremity radiculopathy, the evidence includes a December 2016 statement from the Veteran. At that time, he indicated that he began having left leg numbness and foot pain following the 1972 laminectomy. He also indicated that he first experienced right leg and foot numbness in August 2010. As such, the appropriate effective dates for the left and right lower extremity radiculopathy disabilities are October 12, 1972, (the date of the Veteran's laminectomy) and August 1, 2010, for the right lower extremity radiculopathy disability (the date when the Veteran first reported symptoms). Finally, in a claim of CUE, the duties to notify and assist are not applicable. See 38 C.F.R. § 20.1411(c), (d); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). ORDER The motion for CUE in the April 2017 Board decision that denied effective dates prior to August 21, 2014 for the grant of service connection or a lumbar spine disability, service connection for right and left lower extremity radiculopathy, and service connection for a scar, is granted; the decision is revised to reflect an effective date of October 11, 1952 for the grant of service connection for the lumbar spine disability. An effective date of October 12, 1972, for the award of service connection for scar tissue on the lower back, is granted. An effective date of October 12, 1972, for the award of service connection for left lower extremity radiculopathy is granted. An effective date of August 1, 2010, for the award of service connection for right lower extremity radiculopathy is granted. The motion for CUE in a June 1953 rating decision that denied service connection for a lumbar spine disorder is dismissed as moot. The motion for CUE in a May 1973 rating decision that denied reopening the claim for service connection for a lumbar spine disorder is dismissed as moot. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs