Citation Nr: 1803777 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-26 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a June 2002 rating decision. 2. Entitlement to an effective date prior to November 22, 2010, for the award of service connection for anxiety disorder. REPRESENTATION Veteran represented by: Terry Klippel, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1967 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2017, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. In September 2017, the Board remanded the issues currently on appeal. Specifically, the Board broadened the earlier effective date claim to encompass a CUE claim and remanded with instruction for the RO to consider the CUE claim in the first instance. A November 2017 rating decision and supplemental statement of the case reconsidered the broadened claim in accordance with the Board's instructions. In this decision, the Board separates the issue for clarity of analysis into two issues, CUE and earlier effective date. The Board is therefore satisfied that the instructions in its remand of September 2017 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a final decision issued in June 2002, the RO denied service connection for a nervous condition. 2. The correct facts as they were known at the time of the June 2002 rating decision were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied. 3. The June 2002 rating decision that denied service connection for a nervous condition was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain an error which, had it not been made, would have manifestly changed the outcome of the claim. 4. Following the final June 2002 rating decision, VA first received the Veteran's application to reopen the previously denied claim for service connection for a nervous condition on November 22, 2010. 6. In a September 2011 rating decision, service connection for an anxiety disorder was granted, effective November 22, 2010, the date VA received the Veteran's reopened claim. CONCLUSIONS OF LAW 1. The June 2002 rating decision that denied service connection for a nervous condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The June 2002 rating decision that denied service connection for a nervous condition was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 3. The criteria for an effective date prior to November 22, 2010, for the award of service connection for anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board notes that the VCAA is not applicable to the Veteran's claim of CUE in the June 2002 rating decision. See Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). Regulations and legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered. 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). With regard to the Veteran's claim for earlier effective date for service connection for an anxiety disorder, a December 2010 letter, sent prior to the issuance of the rating decision on appeal, addressed his addressed his underlying claims for service connection. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thereafter, in the September 2011 rating decision, service connection for an anxiety disorder was granted, effective November 22, 2010. Following the issuance of the rating decision, the Veteran entered a notice of disagreement as to the propriety of the assigned effective dates. The Board observes that a claim for an earlier effective date for the grant of service connection is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (the Court held that as to the notice requirements for downstream earlier effective date claims following the grant of service connection, "that where a claim has been substantiated after enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). In this case, the Veteran's service connection claim was granted and an effective date was assigned in the September 2011 rating decision on appeal. As such, no additional 38 U.S.C. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the duty to assist as it pertains to the Veteran's CUE and earlier effective date claims, the Board notes that relevant medical evidence was reviewed by the AOJ in connection with the adjudication of the Veteran's service connection claims. However, pertinent to his CUE and effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his application to reopen his claim for service connection for a nervous condition, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already of record. There is no outstanding information or evidence that would help substantiate the Veteran's claims. 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. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). As stated in the introduction, the Board is satisfied that the directives of the September 2017 have been satisfactorily complied with. Stegall v. West, 11 Vet. App. 268 (1998). In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. CUE As part of his earlier effective date claim, discussed below, the Veteran claims CUE in a June 2002 rating decision with regard to a claim for service connection for nervous condition. He argued at the April 2017 Travel Board hearing that there was CUE in the June 2002 rating decision because a VA examination from 2000 failed to consider his service treatment records from 1968. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege clear and unmistakable error with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his motion. 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. A claim of CUE is a form of collateral attack on an otherwise final rating decision by a VA regional office. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). In determining whether a prior determination involves CUE, the Veterans Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time of the decision, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE consists of "errors that are 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 v. Principi, 3 Vet. App. at 313. "It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In short, a disagreement with how VA evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Moreover, a failure on the part of the RO to fulfill its statutory duty to assist a veteran with the development of facts pertinent to a claim does not constitute CUE. See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). In this case, the Board finds that the Veteran's CUE allegation is not sustainable and, ultimately, reflects a disagreement as to how the facts were weighed in June 2002. In a July 1998 statement in connection with a claim for nonservice-connected pension, the Veteran stated that doctors in the Navy hospital in San Diego, California told him that he had a nervous condition and that he was recommended for a medical discharge in 1967. He also stated that VA doctors knew about his medical problems, including his nervous condition. He reiterated these statements in July 2000. The June 2002 rating decision denying service connection for a nervous condition stated that "[s]ervice medical records indicate that [the Veteran] was seen for nervousness during service. He gave a history or being tense and high strung his whole life. There is no current evidence of treatment for a psychiatric disability..." The Veteran did not appeal this rating decision. The Board observes that this summary of the facts in the June 2002 rating decision is accurate. It is not clear that the "correct facts" were not before the RO in June 2002. To the contrary, adjudication officers are presumed to have considered all the evidence. And, the rating decision's summary of the facts is entirely true to the extent that it correctly states that there was no current evidence of treatment for a psychiatric disability. Moreover, the RO considered the Veteran's service medical records as evidence in rendering the decision. Accordingly, it is not clear and unmistakable that the correct facts were not before the RO in June 2002. Additionally, in all material respects, the law in effect at the time of the June 2002 rating decision was the same as it is at present with regard to evidence demonstrating a current disability. See 38 C.F.R. § 3.303 (2002). The evidence of record in June 2002, however, did not undebatably establish a current psychiatric disability. In other words, the evidence of record at that time was not clearly and unmistakably in the Veteran's favor in establishing service connection. At the April 2017 Travel Board hearing, the Veteran claimed that the CUE stemmed from a VA examination in 2000 wherein the examiner failed to consider his service medical records, though the Veteran discussed that he felt he was suffering from the same nervous condition as when he was in the Marines. The record does not contain a VA exam from any point in the year 2000. Assuming the Veteran asserts that he should have been afforded a VA examination, deficiencies in the duty to assist, to include providing a VA examination, do not constitute CUE. Roberson, supra. If VA erred in not providing him an examination in connection with his claim for service connection for a nervous condition, the Veteran should have raised the error before the June 2002 rating decision became final. Further, that the AOJ later granted service connection for anxiety disorder based on new and material evidence received after the June 2002 rating decision became final does not establish CUE in the earlier decision. Consequently, the Board finds that the correct facts as they were known at the time of the June 2002 rating decision were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied. Therefore, the June 2002 rating decision that denied service connection for a nervous condition was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain an error which, had it not been made, would have manifestly changed the outcome of the claim. Therefore, the Veteran's allegations of error in the June 2002 rating decision are without merit, and his CUE motion is denied. III. Earlier Effective Date The Veteran seeks an effective date earlier than November 22, 2010, for the award of service connection for anxiety disorder. Generally, the effective date of an award of a service connection claim is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, 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(b)(2)(i). In cases involving new and material evidence, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1)(i). In cases where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). A claim is a formal or informal communication in writing requesting determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Here, the Veteran did not file his initial claim for service connection for a nervous condition until July 2000, more than one year after his separation from service in 1967. His claim was denied in a June 2002 rating decision. The Veteran did not appeal the June 2002 rating decision, nor was new and material evidence received within one year thereof. The Veteran filed a petition to reopen his claim for a nervous condition in November 2010. As such, he cannot receive an effective date earlier than when he filed the petition to reopen, which was not until November 22, 2010. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denials of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). As discussed above, although the Veteran has alleged CUE with the June 2002 rating decision with regard to the denial of the nervous condition claim, this instant Board decision denies this claim of CUE. The United States Court of Appeals for the Federal Circuit has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir. 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). The Veteran did not timely appeal the June 2002 rating decision denying his service connection claim for a nervous condition. Moreover, as he did not file a subsequent petition to reopen the nervous condition claim until November 22, 2010, this is the earliest possible effective date he can receive for the eventual grant of service connection for anxiety disorder. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). The Veteran has alternatively alleged that he has had the disability since service and that his effective date should go back to the day after he was discharged from service in January 1968. However, merely having a disability is not equivalent or tantamount to actually filing a claim for that disability. The provisions of 38 U.S.C. § 5110 refer to the date an "application" is received, and "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Here, the Veteran's initial claim for service connection for a nervous condition was not received until July 2000. Thus, the Veteran would not be entitled to an effective date earlier than July 2000 and, for the reasons stated above, is not entitled to an effective date earlier than the current November 22, 2010 effective date. For these reasons, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than November 22, 2010 for the grant of service connection for anxiety disorder. As the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Hence, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER The CUE challenge to the June 2002 rating decision is denied. Entitlement to an effective date earlier than November 22, 2010 for the award of service connection for anxiety disorder is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs