Citation Nr: 18140477 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 14-28 029A DATE: October 4, 2018 ORDER The claims for increased ratings for the service-connected lumbosacral strain with radiculopathy of the right and left lower extremities, Raynaud’s phenomenon, cold injury residuals, right epidydimal cyst, appendectomy scar, and TMJ syndrome, are dismissed. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. An effective date prior to May 28, 2008 for the grants of service connection for posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI), to include whether there is CUE in a prior rating decision, is denied. An effective date prior to October 29, 2010 for the grant of service connection for allergic rhinitis, to include whether there is CUE in a prior rating decision, is denied. An effective date prior to September 21, 2010 for the grants of service connection for sinusitis and obstructive sleep apnea (OSA), to include whether there is CUE in a prior rating decision, is denied. FINDINGS OF FACT 1. On January 31, 2018, during his videoconference hearing at the RO before the undersigned Veterans Law Judge sitting at VA’s Central Office in Washington, DC, and prior to the promulgation of a decision in the appeal, the Veteran, with advice of counsel, expressed his request to withdraw from appellate status all remaining issues on appeal pertaining to increased rating claims, including the issues of increased ratings for the service-connected lumbosacral strain and associated radiculopathy of the right and left lower extremities, Raynaud’s phenomenon, cold injury residuals, right epidydimal cyst, appendectomy scar, TMJ; and, entitlement to a TDIU. 2. The Veteran’s March 2001 and September 2001 claims did not include claims for service connection for sinusitis, TBI, or PTSD. 3. The first claim of service connection for a TBI and/or PTSD, formal or informal, was received at the RO on May 28, 2008, and not earlier; and, any intent to apply for service connection for a TBI and/or PTSD prior to May 28, 2008 did not adequately identify the benefit sought. 4. The Veteran’s initial claims of service connection for allergic rhinitis and OSA were denied in a December 2002 rating decision and the Veteran did not appeal those determinations. 5. The first communication from the Veteran following the December 2002 rating decision that could be construed as a claim of service connection for OSA was received at the RO on September 21, 2010. 6. The first communication from the Veteran following the December 2002 rating decision that could be construed as a claim of service connection for allergic rhinitis was received at the RO on October 29, 2010. 7. A claim of service connection for sinusitis was not received at the RO prior to September 21, 2010. 8. The December 2002 rating decision’s denial of service connection for OSA and allergic rhinitis was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran, as to the issues of entitlement to increased disability ratings for the service-connected lumbosacral strain and associated radiculopathy of the right and left lower extremities, Raynaud’s phenomenon, cold injury residuals, right epidydimal cyst, appendectomy scar, TMJ; and, entitlement to a TDIU, have been met. 38 U.S.C § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for the assignment of an effective date prior to May 28, 2008 for the grants of service connection for TBI and PTSD have not been met. 38 U.S.C. 5110, 5107 (2012); 38 C.F.R. 3.400 (2017). 3. The criteria for the assignment of an effective date prior to September 21, 2010 for the grants of service connection for OSA and sinusitis have not been met. 38 U.S.C. 5110, 5107 (2012); 38 C.F.R. 3.400 (2017). 4. The criteria for the assignment of an effective date prior to October 29, 2010 for the grant of service connection for allergic rhinitis have not been met. 38 U.S.C. 5110, 5107 (2012); 38 C.F.R. 3.400 (2017). 5. The criteria for the revision or reversal of the December 2002 rating decision that denied service connection for OSA and rhinitis, on the basis of CUE have not been met. 38 U.S.C. 5109A (2012); 38 C.F.R. 3.105 (2017). 6. The criteria for the revision or reversal of the December 2002 rating decision for failure to adjudicate claims of service connection for sinusitis, TBI, and/or PTSD, on the basis of CUE, have not been met. 38 U.S.C. 5109A (2012); 38 C.F.R. 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to April 2001. This case is before the Board of Veterans’ Appeals (Board) on appeal from May 2012, June 2014, and December 2015 Regional Office (RO) rating decisions. In September 2015 and December 2016, the Veteran testified at personal hearings before a Decision Review Officer (DRO) at the RO. In January 2018, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. Transcripts of all three proceedings are of record. The issues of entitlement to Vocational Rehabilitation benefits and non-VA health care will be addressed under separate cover. Withdrawn Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative, and must be in writing unless the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204. In this case, at his January 2018 hearing before the Board, the Veteran (appellant) expressed his request to withdraw his appeal as to the issues of entitlement to increased ratings for the service-connected lumbosacral strain and associated radiculopathy of the right and left lower extremities, Raynaud’s phenomenon, cold injury residuals, right epidydimal cyst, appendectomy scar, TMJ; and, entitlement to a TDIU, and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to those issues. The Veteran was represented by counsel at the time of the request. Accordingly, the Board does not have jurisdiction to review these issues, and they are therefore dismissed. Earlier Effective Dates and CUE The Veteran seeks earlier effective dates for the grants of service connection for TBI, PTSD, allergic rhinitis, sinusitis, and OSA. First, the Veteran maintains that he submitted a timely Notice of Disagreement (NOD) to a December 2002 rating decision which, in pertinent part, denied service connection for OSA, TMJ, Raynaud’s phenomenon, and allergies. The Veteran further asserts that the RO incorrectly considered the NOD (which was provided on a VA Form 9), as having been received in June 2004 rather than October 2003. The Veteran maintains that the correct receipt date is October 2003, and as such, the VA Form 9 should have been considered a timely NOD to the December 2002 rating decision. Accordingly, the Veteran asserts that the December 2002 rating decision never became final. The Veteran also maintains that the RO should have construed his claim of service connection for TMJ to include an informal claim of service connection for TBI and PTSD. The Veteran further argues that because the claim of service connection for TMJ was ultimately granted, with an effective date of April 10, 2001, that the effective dates for the service-connected TBI and PTSD should also be April 10, 2001. A review of the record reveals the following procedural history: Just prior to the Veteran’s discharge from service, he submitted a VA Form 21-526 Application for Compensation or Pension which was received at the RO in March 2001. In the section entitled “Nature of Sickness, Disease or Injuries for Which this Claim is Made” the Veteran wrote, “See attached DD Form 2697.” Similarly, in a subsequent section of the application requesting treatment dates for the claimed in-service disabilities, diseases and/or injuries, the Veteran wrote, “See service medical records.” A review of the attached DD Form 2697 shows that the Veteran underwent a medical assessment in December 2000. According to the Veteran’s self-reported history at that time, he was suffering from jaw pain, testicle pain, lower back pain and numbness in the foot, allergies, achilles pain, ankle popping and shoulder pain. He claimed exposure to carcinogens and climate-induced sickness. The examiner addressed the claimed jaw pain noting that since an “altercation” the Veteran has had clicking and popping; and, his teeth did not line up. The Veteran’s other service treatment records (STRs) were also associated with the file at the time of service discharge in April 2001. In June 2001, the Veteran contacted the RO to let them know that he was reenlisting in the military and therefore wished to withdraw his claim. In August 2001 correspondence, the RO acknowledged the Veteran’s request to withdraw his claims of service connection for low back pain, a bilateral foot condition, allergies, Achilles pain, left ankle popping, jaw pain, and a bilateral shoulder condition. In September 2001 correspondence, the Veteran notified the RO that he wished to continue his claim. In this regard, the Veteran provided a history of his allergies, low back pain, left ankle popping, bilateral foot condition, jaw pain, Achilles tendons, and shoulder condition. Regarding the jaw pain, the Veteran stated, “My jaw pain has been more prevalent during the past 3 years, but wasn’t a problem until July 2000 when I was attacked and hit in the forehead with a blunt object.” The Veteran further stated, “I can’t remember anything from that, but my jaw had some tears in the cartilage.” The Veteran also submitted a September 2001 VA Form 21-4138 Statement in Support of Claim, which provided additional details regarding the Veteran’s claimed back pain and testicular pain; and, it also included an informal claim for OSA, dermatitis, numbness in the fingers, and hip joint pain. The Veteran did not claim service connection for a head injury or PTSD. In response, the RO afforded the Veteran a series of VA examinations to address the Veteran’s contentions in March 2002. At his VA dental and oral examination, the Veteran reported that he was involved in an altercation in July 2000 when he was knocked unconscious for at least thirty minutes and was hospitalized. The Veteran reported to the examiner that he had radiographs and an MRI of his jaw at that time, which ruled out an acute fracture of the mandible, but reportedly showed tears in the cartilage of the jaw joints. Significantly, the examiner reviewed the STRs and noted that there was no appreciable difference in the panoramic radiograph from June 1996 compared to that of February 2001. The examiner also noted that there was a mention in the service dental records regarding the July 2000 altercation to which the Veteran referred, but the actual hospital records were not part of the STRs. Before the RO adjudicated the claims, the Veteran requested to discontinue his claim in May 2002 due to an anticipated re-enlistment; however, in September 2002, the Veteran notified the RO that his re-enlistment fell through and that he wished to continue his claim. In a December 2002 rating decision, the RO, in pertinent part, denied claims of service connection for OSA (no evidence of current disability or chronicity in service), Raynaud’s phenomenon (no nexus to service), and allergies (no current chronic disability). The RO based the denials on the findings of the VA examiners in March 2002. The RO granted service connection for a lumbar spine disability and a right epididymal cyst. In January 2003, additional STRs were located and received at the RO, consisting of a pre-enlistment examination and lab results, presumably conducted in anticipation of the Veteran’s return to active duty (per the Veteran’s May 2002 notice of such). According to a June 2002 Report of Medical History at enlistment, the Veteran reported that his present health was excellent, and he did not report jaw pain, fatigue, allergies, or any other disabling condition at that time. Additionally, in February 2003, the Veteran submitted private hospital records from July 2000 which document the Veteran’s head injury and resultant jaw pain. The RO subsequently issued a rating decision in March 2003, finding, in pertinent part, that the December 2002 rating decision’s denial of service connection for TMJ was a clear and unmistakable error. Significantly, the RO noted that the additional STRs received in January 2003 had no bearing on the claim of service connection for TMJ. However, the RO found that the material facts at the time of the December 2002 rating decision were overlooked, and established a current disability of TMJ, with onset and treatment shown during service. Accordingly, the RO determined that it was CUE for failing to establish service connection for TMJ at the time of the December 2002 rating decision, and service connection was granted for TMJ, effective from April 10, 2001, the date following the Veteran’s service discharge. That decision also determined that the correct effective date for the other grants of service connection (low back disability and epididymal cyst) was April 10, 2001. The Veteran was notified of the March 2003 rating decision in March 2003 correspondence. In September 22, 2003 correspondence and October 3, 2003 correspondence, the Veteran and his representative, respectively, notified the RO that the Veteran had recently moved to a new State, and requested a transfer of the Veteran’s claims file to that State. Based on the date stamp, the new RO received the request on October 6, 2003, and a computerized report shows that the claims file was transferred on October 17, 2003. A “Covers” notice of transfer shows that the Veteran’s claims file was permanently transferred on October 24, 2003. That same day, the new RO notified the Veteran in correspondence that the transfer was complete. In January 2004 correspondence, the Veteran requested an increased rating for his lumbar spine disability, and service connection for his appendectomy scar, Raynaud’s phenomenon, and a bilateral Achilles tendon disability. The Veteran did not request service connection for PTSD, TBI, rhinitis, sinusitis or OSA. In March 2004, the RO sent the Veteran a duty-to-assist letter acknowledging the Veteran’s recent claims. On July 1, 2004, the Veteran’s representative submitted a VA Form 9 on behalf of the Veteran. The RO’s date stamp shows that it was received that same day, July 1, 2004. The attached VA Form 9 was also stamped as having been received at the RO on July 1, 2004. The VA Form 9, completed by the Veteran, appears to indicate that the Veteran signed the form on October 2, 2003 (although there is some question as to whether an initial handwritten date was scribbled out). The document also shows another date stamp indicating receipt on October 2, 2003. The source of this date stamp is unknown, and is not typical of date stamps used by ROs. Irrespective of when it was actually received, the VA Form 9 in question contains argument in support of claims for an increased rating for the Veteran’s service-connected lumbar spine disability including pain shooting down his legs; and, claims of service connection for achilles pain, appendectomy scar pain, “fatigue problems (low energy level),” and cold injury residuals. There is no mention of the Veteran’s jaw pain, or any intent to claim service connection for TBI, PTSD, OSA, rhinitis, or sinusitis. In a July 29, 2004 “Routing and Transmittal Slip” the RO notified the Veteran’s representative that they received the Veteran’s increased rating claim on January 27, 2004, and subsequently received the aforementioned VA Form 9 which referred to some of the issues raised in the January 2004 claim. The RO requested clarification from the Veteran’s representative as to whether the Veteran wanted his Form 9 to be accepted as a Notice of Disagreement (as no NOD had been received); and, if so, as to what issues? In an October 2004 response, the Veteran’s representative notified the RO that he was unable to respond to the July 29, 2004 clarification request because the Veteran had not returned any of the representative’s phone calls. Based on the non-responsiveness of the Veteran, the RO issued a deferred rating decision in October 2004 noting that the VA Form 9, “received October 2, 2003,” shall be considered a claim for increased compensation; and, concluded that no NOD had been filed which disagreed with the March 2003 rating decision. In an October 2004 rating decision, the RO confirmed and continued the previously assigned disability rating for the service-connected lumbar spine disability; granted service connection for an appendectomy scar; and, denied service connection for a bilateral Achilles tendon condition and Raynaud’s phenomenon because new and material evidence had not been submitted to reopen those previously denied claims. Notice of that determination was provided to the Veteran in November 2004. The Veteran did not timely appeal that determination. The next communication from the Veteran was received at the RO in 2007. In August 2007, the RO received the Veteran’s claim for an increased rating for his back disability, and claimed service connection for secondary disabilities related to his back. The Veteran did not indicate any intent to file a claim of service connection for TBI, PTSD, OSA, rhinitis, or sinusitis at that time. The first communication from the Veteran that could be construed as a claim, formal or informal, for entitlement to service connection for a TBI and PTSD is dated May 28, 2008. Service connection for TBI and PTSD was subsequently granted in a May 2009 rating decision, with an effective date of May 28, 2008. The Veteran did not file a timely NOD disagreeing with the effective date of service connection for TBI and PTSD. Similarly, the first communication from the Veteran following the finality of the December 2002 rating decision that could be construed as a claim to reopen the previously denied claims of service connection for OSA and allergies was received at the RO on September 21, 2010 and October 29, 2010, respectively. Likewise, the first indication of an intent to file a claim of service connection for sinusitis was also received on September 21, 2010. Additionally, in a May 2012 rating decision, the RO granted service connection for allergic rhinitis and assigned an effective date of October 29, 2010, the date of the reopened claim. The RO specifically found that the previous denial of service connection for allergies (allergic rhinitis) was not clearly and unmistakable erroneous. In that same May 2012 rating decision, the RO also found that the previous December 2002 decision to deny service connection for cold injury residuals was CUE, because it did not consider that service connection was warranted on a presumptive basis. Accordingly, service connection for cold injury residuals of the bilateral upper extremities was granted, effective from April 10, 2001. In a subsequent rating decision in July 2012, the RO granted service connection for Raynaud’s phenomenon, effective from April 10, 2001. The RO found that the previously denied claim of service connection for Raynaud’s phenomenon was CUE because, in essence, the Veteran was describing the same symptoms which were associated with cold injury residuals. Finally, in a June 2014 rating decision, the RO granted service connection for OSA, with an effective date of September 21, 2010, the date of the reopened claim. As noted above, the RO conceded that the VA Form 9 in question was received at the RO in October 2003 in its October 2004 deferred rating, and the Board will not disturb that finding. However, even though the timeliness of the VA Form 9 is not in question, there is still an issue as to whether it can be construed as an NOD to the December 2002 and/or the March 2003 rating decisions. The Veteran’s arguments are summarized in August 2014 correspondence, and an August 2014 VA Form 21-4138. Notably, the Veteran never clarified that the VA Form 9 (presumably received in October 2003) should be considered an NOD to any rating decision (the December 2002 rating decision or the March 2003 rating decision) despite being given the opportunity to do so. The Veteran argues that the RO should have nevertheless construed it as such. Significantly, the RO clearly documented receipt of the VA Form 9, and, documented that it was not clear what the Veteran’s intentions were. That is precisely why the RO, in meeting its duty to assist burden, requested clarification from the Veteran and the representative in July 2004. The current law requires that an NOD be filed on a specific VA-generated form which requires the Veteran to specify the rating decision and issues with which he disagrees. See 38 C.F.R. § 20.201 (2017). However, at the time of the December 2002 and March 2003 rating decisions; and, the October 2003 VA Form 9, the law and regulations defined an NOD as a written communication from a claimant or a representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction and a desire to contest the result. The regulations further stated that while special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. See 38 U.S.C. § 7105 (1991); 38 C.F.R. § 20.201 (effective prior to September 25, 2014). Likewise, if the AOJ receives timely written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to requires clarification of the claimant’s intent. See 38 C.F.R. § 19.26(b). In essence, the communication from the Veteran received on October 2, 2003 could reasonably be construed as expressing dissatisfaction with the disability rating assigned for the lumbar spine at that time; and, dissatisfaction with the denial of service connection for achilles pain. The communication also expressed that the Veteran experienced severe pain where his appendix was removed, suffered from cold injury residuals, and had been experiencing fatigue problems (low energy level). Thus, even if the Veteran had responded to the July 2004 clarification request; and/or the RO had, in fact, construed the October 2003 VA Form 9 as an NOD to the December 2002 rating decision, it would have to be limited to the issues identified on the Form 9. Accordingly, it has no effect on the Veteran’s claims for earlier effective dates for the grants of service connection for OSA, rhinitis, sinusitis, TBI or PTSD. The written communication received on October 2, 2003, even if considered timely, does not express disagreement or dissatisfaction with the December 2002 rating decision’s denial of service connection for OSA or allergies (rhinitis); and, neither the December 2002 rating decision nor the March 2003 rating decision adjudicated the issues of service connection for sinusitis, TBI, or PTSD. The Veteran argues that the RO should have construed his report of fatigue and low energy level on the October 2, 2003 VA Form 9 as an NOD to the December 2002 rating decision’s denial of service connection for OSA. The Board disagrees. Even if the claim of service connection for OSA is the only potential issue involving fatigue, the AOJ cannot be tasked with having to guess the Veteran’s intentions. That is precisely why the AOJ requested clarification in July 2004. Accordingly, the Board finds that the October 2, 2003 VA Form 9 does not satisfy the requirements for an NOD to the December 2002 rating decision’s denial of service connection for OSA or allergies (rhinitis). The Veteran also argues that because the AOJ considered the October 2, 2003 VA Form 9 as a new claim, it should have considered the VA Form 9 to include a claim of service connection for fatigue, and/or construed the reports of fatigue as an inferred claim of service connection for TBI, sinusitis, and/or allergic rhinitis. A specific claim in the form prescribed by the Secretary 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); 38 C.F.R. § 3.151. Prior to March 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. The Board finds that the Veteran’s reported fatigue and low energy level on the October 2, 2003 VA Form 9 does not, in and of itself, constitute an informal claim of service connection. First, the Veteran does not identify any benefit sought with respect to his report of fatigue, and, he did not identify which denied claim he associated the fatigue with. Moreover, as noted above, the AOJ specifically found that the Veteran’s intentions were ambiguous and the Veteran did not subsequently provide requested clarification. The Board recognizes that the Veteran, as a lay person, is not expected to know what disability, if any, is causing his fatigue; however, to be considered a claim for benefits, or an intent to appeal an adverse rating action, the Veteran must, at the very least, communicate that intent. Moreover, the effective date of service connection cannot be earlier than the date entitlement arose. Accordingly, if the Veteran did not have a diagnosis of the condition(s) for which service connection was sought at that time, then the criteria for the assignment of an earlier effective date are not met. The Board finds that the Veteran’s report of fatigue on the October 2, 2003 VA Form 9 does not identify a benefit sought as a result of fatigue and it does not identify a particular adverse rating action. If the AOJ found the report of fatigue to be unambiguous, it would not have requested clarification in July 2004. Accordingly, as the Veteran did not adequately identify the benefit sought with respect to reported fatigue in October 2, 2003, the AOJ was under no obligation to construe this communication as a claim of service connection for fatigue. see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999) (to be considered an informal claim, the communication must “indicat[e] an intent to apply for one or more benefits under the laws administered by the Department,” and “identify the benefits sought.”). The Veteran also argues that he is entitled to effective dates prior to September 21, 2010 for the grants of service connection for sinusitis and OSA; and, to an effective date prior to October 29, 2010 for the grant of service connection for allergic rhinitis. In this regard, the Veteran maintains that his symptom of fatigue, noted on the October 2, 2003 VA Form 9 discussed above, should not have been construed as solely applying to OSA; but rather, it should have also been considered in conjunction with claims of service connection for allergic rhinitis and TBI. As noted above, the Veteran did not mention allergic rhinitis or TBI in the October 2, 2003 VA Form 9, and the AOJ cannot be expected to guess what the Veteran’s intentions are, particularly where, as here, the Veteran’s notation of fatigue was ambiguous, and the AOJ requested clarification to which the Veteran did not respond. As noted above, even if the October 2, 2003 VA Form 9 is considered a timely NOD to the December 2002 rating decision, it is limited to only those adverse AOJ determinations to which the Veteran specifically identified; and, to which the Veteran expressed a desire to contest the result. The Board concludes that nothing expressed on the October 2, 2003 VA Form 9 can be reasonably construed as a disagreement with the denials of service connection for OSA or allergic rhinitis. Even if his fatigue was a symptom of OSA and/or allergic rhinitis, the Veteran never identified or contested the adverse decision with regard to OSA or rhinitis and, moreover, the AOJ can neither be expected to guess what the Veteran meant; nor be expected to infer a claim of sinusitis when no such claim is identified. If the Veteran disagreed with (and intended to appeal) the December 2002 rating decision’s denial of service connection for OSA and allergic rhinitis, then it would be expected that those specific issues would have been identified on the October 2003 VA Form 9 along with the other claims. Accordingly, when the Veteran failed to respond (via his representative) to a July 2004 request for clarification, the December 2002 rating decision became final. Governing law and regulation provide that the effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r). A reopened claim is any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence. 38 C.F.R. § 3.160 (e). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). As noted above, as it pertains to the denial of service connection for OSA and allergic rhinitis in the December 2002 rating decision, these determinations are final. The next communication from the Veteran that could be construed as a claim of service connection for OSA, formal or informal, was received at the RO on September 21, 2010; and the next communication from the Veteran that could be construed as a claim of service connection for allergic rhinitis, formal or informal, was received at the RO on October 29, 2010. These are the respective effective dates assigned for the grants of service connection for OSA and allergic rhinitis, and there is no basis on which to assign earlier effective dates unless CUE in a prior rating decision is shown. 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. For a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Furthermore, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that exited at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, supra. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. 3.104 (a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, supra. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, supra. It must be remembered that there is a presumption of validity to otherwise final decisions, and that were such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The facts at the time of the December 2002 rating decision indicated that the Veteran did not have a current diagnosis of OSA; and, that his allergic rhinitis was not present at that time, and therefore not chronic. The correct facts were before the adjudicator, there is no undebatable error, and the decision was properly based on the record and law as it existed at that time. Accordingly, the Board finds no CUE in the December 2002 rating decision’s denial of service connection for OSA or rhinitis. Additionally, the Veteran argues that he is entitled to an effective date prior to May 28, 2008 for the grants of service connection for TBI and PTSD. As noted above, the Veteran did not timely appeal the May 2009 rating decision’s assignment of a May 28, 2008 effective date for the grants of service connection for TBI and PTSD. Although the Veteran submitted an NOD to the May 2009 rating decision in November 2009, that NOD was specifically limited to the Veteran’s disagreement with the assigned ratings and not the assigned effective dates. Significantly, an effective date cannot be challenged with a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error in the decision assigning the effective date or in a prior decision, the reversal of which would result in an earlier effective date. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.105, 20.1400 (2017). The Veteran maintains that the AOJ should have construed the Veteran’s reports of a head injury in conjunction with his claim of service connection for TMJ, as an inferred claim for TBI and associated PTSD. The Veteran also asserts that the receipt of the private treatment records from July 2000 which documented the head injury should have been construed as an inferred claim of service connection for TBI. While the Board acknowledges that the Veteran reported the details of his head injury in conjunction with his claim of service connection for TMJ in September 2001 statements; and, it was noted by the VA examiner in March 2002, the Veteran never expressed an intent to apply for service connection for TBI or PTSD at that time. As noted previously, the Board cannot be expected to guess as to whether the Veteran intended to file a claim for a specific benefit when such intent is not expressed. The Veteran specifically claimed service connection for TMJ and referred to an in-service head injury to support his TMJ claim. This then begs the question, if the Veteran also wished to claim service connection for a TBI and/or PTSD at that time, then why did he not say so? It is quite possible that the Veteran did not know he had a TBI and/or PTSD at that time. If that were the case, however, then he would not have had a diagnosis of TBI and/or PTSD at that time, and therefore entitlement to service connection for those disabilities would not yet have arisen. See 38 C.F.R. § 3.400. Moreover, had the Veteran intended to file a claim of service connection for TBI residuals and/or PTSD in 2001, or when he submitted the additional private treatment records documenting the head injury, he had ample opportunity following the December 2002 rating decision to inquire as to why no such claim was adjudicated, including on the October 2003 VA Form 9, and in response to the March 2003 notice of the March 2003 rating decision; however, the Veteran did not thereafter inquire as to why a TBI claim was not adjudicated. Accordingly, the Board finds that the earliest claim of service connection for TBI residuals and/or PTSD, formal or informal, was received on May 28, 2008, and not earlier. (Continued on the next page)   In conclusion, there is no legal basis on which to assign earlier effective dates for the grants of service connection for OSA, allergies, sinusitis, TBI and/or PTSD. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lauren B. Cryan, Counsel