Citation Nr: 18141255 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-33 476 DATE: October 10, 2018 ORDER An effective date prior to December 27, 2001, for the award of service connection for lumbosacral strain with degenerative disc disease, to include on the basis of clear and unmistakable error (CUE) in rating decisions issued in September 1978, August 1998, and March 2006, is denied. FINDINGS OF FACT 1. In March 2009, the Veteran filed a freestanding claim for an effective date prior to December 27, 2001, for the award of service connection for lumbosacral strain with degenerative disc disease. 2. In a final September 1978 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for lumbosacral strain. 3. In a final August 1998 rating decision, the AOJ denied service connection for a back condition. 4. In a final March 2006 rating decision, the AOJ awarded service connection for lumbosacral strain with degenerative disc disease, effective December 27, 2001. 5. The rating decisions issued in September 1978, August 1998, and March 2006, were consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The September 1978 rating decision that denied service connection for lumbosacral strain is final. 38 U.S.C. § 4005 (1976) [(38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978) [(38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017)]. 2. The August 1998 rating decision that denied service connection for a back condition is final. 38 U.S.C. § 7105(c) (West 1991) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1998) [(2017)]. 3. The March 2006 rating decision that awarded service connection for lumbosacral strain with degenerative disc disease, effective December 27, 2001, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005) [(2017)]. 4. The criteria for revision or reversal based on CUE of the September 1978, August 1998, or March 2006 rating decisions have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 5. The criteria for an effective date prior to December 27, 2001, for the grant of service connection for lumbosacral strain with degenerative disc disease, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to August 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2010 by a Department of Veterans Affairs (VA) Regional Office. In July 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2017, the case was remanded for additional development and it now returns to the Board for further appellate review. Entitlement to an effective date prior to December 27, 2001, for the award of service connection for lumbosacral strain with degenerative disc disease, to include on the basis of CUE in rating decisions issued in September 1978, August 1998, and March 2006. As noted in the October 2017 remand, the Board has recharacterized the issue on appeal to reflect consideration of whether there is CUE in September 1978 and August 1998 rating decisions that denied service connection for a back disorder, and in the March 2006 rating decision that awarded service connection for such disability, effective December 27, 2001, as the Veteran’s current claim for an earlier effective date is a freestanding claim. Specifically, as will be discussed below, the March 2006 rating decision that assigned the effective date for the award of service connection for the Veteran’s back disability is final, and his claim for an earlier effective date was received in March 2009. In this regard, in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. Therefore, as the Veteran’s March 2009 claim is a freestanding claim for an earlier effective date, the Board has recharacterized such issue as reflected on the title page of this decision to reflect consideration of CUE in the aforementioned prior rating decisions. Generally, the effective date of an evaluation of 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. § 5110; 38 C.F.R. 3.400. More specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 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. In order 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). 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. 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 laws and regulations governing the award of service connection in September 1978 and August 1998 are essentially the same as those currently in effect. Specifically, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 310, 1110, 1131; 38 C.F.R. § 3.303(a). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 312, 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). Furthermore, the laws and regulations governing the assignment of effective dates, detailed above, are essentially the same as those in effect at the time of the March 2006 rating decision. Here, the Veteran asserts an earlier effective date is warranted based on his treatment for, and diagnosis of, his back disorder at VA facilities prior to December 27, 2001. The Veteran’s representative cites the provisions of 38 C.F.R. § 3.157 as a basis for this argument, which states that the date of examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of the claim. The Veteran also asserts that, because the evidence demonstrates back symptoms in service, a current back disability, and continuous symptoms since service, the correct effective date for the award of service connection is the date of the receipt of his original claim on July 10, 1978. Initially, the Board notes 38 C.F.R. § 3.157 only applies 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, treatment, or hospital admission. Consequently, such regulation is inapplicable in the instant case, and the Veteran’s representative’s argument in such regard is without merit. CUE in a September 1978 Rating Decision In the September 1978 rating decision, the AOJ denied service connection for lumbosacral strain. At such time, the AOJ considered the Veteran’s service treatment records, post-service treatment records, and a March 1975 VA examination. Specifically, the AOJ affirmed the findings from an August 1978 rating decision, wherein it determined the Veteran’s in-service back problems were temporary conditions with no residuals and denied the claim in light of the Veteran’s post-service surgery due to an automobile accident. In September 1978, the Veteran was advised of the decision and his appellate rights, and he entered a notice of disagreement in October 1978. In this regard, while he alleged that he did not receive notice of his appellate rights, the fact that he thereafter entered a notice of disagreement refutes such argument. Thereafter, a statement of the case was issued in January 1979. In this regard, the statement of the case noted explicit consideration of the Veteran’s service treatment records, which showed complaints and treatment referable to his back; post-service treatment records showing treatment for injuries sustained to the back as a result of a motor vehicle accident in January 1974; and a March 1975 VA examination, which showed a current diagnosis of a back disorder, and continued the denial of service connection on the basis that the Veteran’s in-service back complaints were acute conditions with no residuals. In view of injury to the back subsequent to service, it was determined that the Veteran’s current back disorder was not related to his military service. The Veteran did not file a timely substantive appeal. Furthermore, no new and material evidence was physically or constructively received within the remainder of the appeal period, and no relevant service department records have since been received. In this regard, the Board notes that, subsequent to such decision, the Veteran submitted copies of his service treatment records showing complaints and treatment referable to a back disorder; however, such are duplicative of those previously considered and, thus, irrelevant. Therefore, the September 1978 decision is final. 38 U.S.C. § 4005 (1976) [(38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978) [(38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017)]. The Veteran asserts service connection was warranted at the time of such decision as the evidence demonstrated a current back disability, in-service symptoms, and continuity of symptomatology. However, based upon a review of the evidence at the time of the September 1978 rating decision, and subsequent January 1979 statement of the case, the Board finds that such was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. Specifically, while evidence demonstrating a current back disorder and in-service back complaints were of record and considered by the AOJ adjudicators, the evidence also showed a post-service motor vehicle accident in January 1974. As such, the adjudicator weighed the evidence, and determined that such post-service accident, rather than any in-service event or injury, had caused the Veteran’s current back disorder. As noted above, CUE requires more than a simple disagreement as to how the facts were weighed or evaluated; therefore, the Veteran’s assertion that his back disorder is related to service, which essentially attacks the weighing of the evidence in the September 1978 rating decision, is not sufficient to demonstrate CUE. Furthermore, the Board finds the AOJ applied the correct law extant at the time of the decision, which required evidence of a current disability, an in-service event, and a nexus for service connection. Moreover, while service connection may also be established by showing continuity of symptomatology after service, the evidence demonstrates an intercurrent cause, i.e., a motor vehicle accident, of his back disorder. Therefore, the Veteran’s disagreements with the AOJ’s determination as to the lack of continuity of symptomatology, as well as a possible relationship between a back disability and service, concern the weighing of the evidence and, as such, do not constitute a basis for the finding of CUE. Based on the above, the Board finds revision or reversal based on CUE in the September 1978 is not warranted as the evidence does not show the result would have been manifestly different but for any error on which reasonable minds could not differ. As a result, the assignment of an earlier effective date based on CUE in the September 1978 rating decision must be denied. CUE in an August 1998 Rating Decision In an August 1998 rating decision, the AOJ denied service connection for a back condition. At such time, the AOJ noted that the Veteran had filed an application to reopen such previously denied claim in May 1998. In connection with such claim, he submitted duplicate service treatment records that already been considered in evaluating his previously claim. A letter was sent to him in May 1998 requesting new evidence to support his claim; however, none had been received. Consequently, the AOJ determined that there was no evidence showing a chronic back condition subject to service connection, i.e., related to an in-service disease or injury. In August 1998, the Veteran was notified of the decision and his appellate rights; however, he did not enter a notice of disagreement. In this regard, while he alleged that he did not receive notice of his appellate rights, the Board finds such argument to be without merit as notice of the decision and his appellate rights were sent to his address of record and was not returned as undeliverable. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. In this regard, the Board notes that, subsequent to such decision, the Veteran submitted copies of his service treatment records showing complaints and treatment referable to a back disorder; however, such are duplicative of those previously considered and, thus, irrelevant. Therefore, the August 1998 decision is final. 38 U.S.C. § 7105(c) (West 1991) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1998) [(2017)]. Similar to his arguments in regard to the September 1978 decision, the Veteran asserts service connection was warranted at the time of such decision as the evidence demonstrated a current back disability, in-service symptoms, and continuity of symptomatology. However, based upon a review of the evidence at the time of the August 1998 rating decision, the Board finds that such was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. As discussed with regard to the September 1978 rating decision, while evidence demonstrating a current back disorder and in-service back complaints were of record and considered by the AOJ adjudicator, the evidence also showed a post-service motor vehicle accident in January 1974. As such, the adjudicator weighed the evidence, and determined that such post-service accident, rather than any in-service event or injury, had caused the Veteran’s current back disorder. As noted above, CUE requires more than a simple disagreement as to how the facts were weighed or evaluated; therefore, the Veteran’s assertion that his back disorder is related to service, which essentially attacks the weighing of the evidence in the August 1998 rating decision, is not sufficient to demonstrate CUE. Furthermore, the Board finds the AOJ applied the correct law extant at the time of the decision, which required evidence of a current disability, an in-service event, and a nexus for service connection. Moreover, while service connection may also be established by showing continuity of symptomatology after service, the evidence demonstrates an intercurrent cause, i.e., a motor vehicle accident, of his back disorder. Therefore, the Veteran’s disagreements with the AOJ’s determination as to the lack of continuity of symptomatology, as well as a possible relationship between a back disability and service, concern the weighing of the evidence and, as such, do not constitute a basis for the finding of CUE. Based on the above, the Board finds revision or reversal based on CUE in the August 1998 is not warranted as the evidence does not show the result would have been manifestly different but for any error on which reasonable minds could not differ. As a result, the assignment of an earlier effective date based on CUE in the August 1998 rating decision must be denied. CUE in a March 2006 Rating Decision In a March 2006 rating decision, the AOJ granted service connection for lumbosacral strain with degenerative disc disease based on an October 2003 VA opinion relating such disorder to service, effective December 27, 2001. Although not clearly stated in the decision, it appears the AOJ assigned the effective date based on the date of the receipt of an application to reopen the claim for service connection for a back condition following the final August 1998 rating decision. In March 2006, the Veteran was advised of the decision and his appellate rights, and he entered a notice of disagreement in July 2006. In this regard, while he alleged that he did not receive notice of his appellate rights, the fact that he thereafter entered a notice of disagreement refutes such argument. In June 2007, the AOJ issued a statement of the case and the Veteran’s substantive appeal was received in April 2008; however, such was untimely. Furthermore, no new and material evidence was physically or constructively received within the remainder of the appeal period, and no relevant service department records have since been received. Therefore, the March 2006 decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005) [(2017)]. As noted above, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. The Veteran testified that he reported continued treatment for his back condition to the AOJ. However, the record does not show he submitted any correspondence, to include a formal or informal claim, for service connection for a back condition between the issuance of the August 1998 rating decision and the December 27, 2001, claim. Therefore, based upon a review of the evidence at the time of the March 2006 rating decision, the Board finds that such was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome Based on the above, the Board finds revision or reversal based on CUE in the March 2006 is not warranted as the evidence does not show the result would have been manifestly different but for any error on which reasonable minds could not differ. As a result, the assignment of an earlier effective date based on CUE in the March 2006 rating decision must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel