Citation Nr: 18147343 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 15-41 147 DATE: November 6, 2018 ORDER Entitlement to an effective date prior to August 12, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for residuals of a gunshot wound to the left hip is remanded. Entitlement to service connection for a low back disorder, to include as secondary to a left hip disorder, is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to a left hip disorder, is remanded. FINDINGS OF FACT 1. In a February 2012 rating decision, the RO granted service connection for PTSD and assigned a 70 percent evaluation effective from August 12, 2011. 2. The Veteran has filed a freestanding claim for an earlier effective date for the grant of service connection for PTSD, and there has been no allegation of clear and unmistakable error (CUE) in a prior decision. CONCLUSION OF LAW Entitlement to an effective date earlier than August 12, 2011, for the grant of service connection for PTSD is dismissed. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1971 to April 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the claim for service connection for a left hip disorder was previously denied in a final rating decision dated September 1975. As such, the issue had been adjudicated as whether new and material evidence had been submitted to reopen the claim. However, the evidence associated with the claims file since the issuance of the September 1975 rating decision includes additional service records. Such records were previously unavailable and are relevant, as they document treatment for a retained bullet in the left hip in March 1975. As a result, the Board has recharacterized the issue, and the claim will be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c) (new and material evidence-service department records). Law and Analysis Initially, the Board notes that VA's notification and assistance duties are not applicable in this case because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159 (b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established). As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on the application of the laws and regulations pertaining to the finality of a RO decision. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004). In considering the evidence of record under the applicable laws and regulations, the Board concludes that an earlier effective date is not warranted for the grant of service connection for PTSD. In a February 2012 rating decision, the RO granted service connection for PTSD and assigned a 70 percent evaluation effective from August 12, 2011. The Veteran was notified of that decision and of his appellate rights, but he did not appeal the effective date or submit new and material evidence within the one-year appeal period. Therefore, the February 2012 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.1103. The Veteran later submitted a statement in April 2013 in which he claimed entitlement to an earlier effective date for the grant of service connection for PTSD. The statement was received by VA more than one year after the issuance of the February 2012 rating decision. The United States Court of Appeals for Veterans Claims (Court) has held that an effective date cannot be challenged with a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rather, if a claimant wishes to obtain an effective date earlier than that assigned in an RO decision, the claimant must file a timely appeal to that decision or submit new and material evidence within the one-year appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302. Otherwise, the decision becomes final, and the only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error (CUE) in the decision assigning the effective date or in a prior decision, the reversal of which would result in an earlier effective date. Rudd, 20 Vet. App. 296 at 299; 38 U.S.C. §§ 5109A; 38 C.F.R. §§ 3.105, 20.1400. The Board finds that the Veteran has not made a specific allegation of CUE in any prior decision. A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. at 44, review en banc denied, 6 Vet. App. 162, 163 (1994) (noting that pleading and proof are two sides of the same coin; if there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement). Any allegations regarding how the AOJ weighed or evaluated the facts of the case in a prior decision cannot form the basis of a clear and unmistakable error claim. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In this case, the Veteran was previously denied service connection for PTSD in a February 2010; however, he has not alleged CUE in that decision or the February 2012 rating decision that assigned the current effective date. He did assert in a November 2015 Form 9 that reasonable doubt should have been resolved in his favor in the earlier denial; however, such an argument must fail as a matter of law. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE claim because the nature of such a claim is that it involve more than a disagreement as to how the facts were weighed or evaluated). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be of fact or of law, and when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable error. Allegations that previous adjudications had improperly weighed and evaluated the evidence also can never rise to the stringent definition of clear and unmistakable error. Fugo, 6 Vet. App. at 43-44. Based on the foregoing, and in the absence of any applicable exception to the finality rule, the Veteran's claim for an earlier effective date must be dismissed. See Rudd, 20 Vet. App. at 299-300 (a freestanding claim for an earlier effective date "vitiates the rule of finality" and should be dismissed). The Board acknowledges the Veteran’s contention that he filed a timely appeal with respect to an earlier February 2010 rating decision that had denied service connection for PTSD. Specifically, he has asserted that he filed an October 2009 substantive appeal following the issuance of a September 2010 statement of the case (SOC) that denied the claim. However, in light of the final February 2012 rating decision granting the effective date, this argument cannot be addressed on the merits; any discussion in this regard would be vacated by the Court should the Board's decision be appealed. See Juarez v. Peake, 21 Vet. App. 537, 541 (2008) (modifying, to remove, that portion of a Board decision that reviewed effective date related to a finding in prior RO decision that had not been appealed by the veteran and had therefore become final); see also Garcia v. Shinseki, No. 11-3074 (Vet. App. Feb. 1, 2013) (agreeing with Board that appeal of assigned effective date was impermissible under Rudd, but finding denial rather than dismissal "improper because, as the Court stated in Rudd, the Board has no authority to address the appellant's claim," and vacating the portion of the Board's decision addressing the merits of the earlier effective date claim); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decision may be relied upon for any persuasiveness or reasoning it contains). REASONS FOR REMAND Prior to service, in 1970, the Veteran experienced a gunshot wound to his left hip. His left hip was asymptomatic at entrance. He had reported, while on active duty, he used his legs and hips often as a hospital corpsman and engaged in martial arts at which point the bullet migrated into the hip joint. The Veteran’s service treatment records reflect that he underwent surgery to have the bullet removed in March 1975. An April 1975 service treatment record notes the bullet had struck the anterior proximal portion of the left hip, and x-rays revealed movement of the bullet. He underwent exploration of the left hip joint, and a .22 caliber bullet was located and removed. A subsequent separation examination found that the Veteran’s lower extremities were normal. The Veteran has recalled that his doctor in March 1975 advised him that the surgery could lead to bone spurs and/or arthritis. See May 2014 Notice of Disagreement. Post-service medical records reflect bone spurring with stable post-traumatic changes in the left hip as per July 2012 x-rays, and the Veteran has been diagnosed with osteoarthritis of the left hip. Imaging from January 2008 showed findings of a minimal amount of metallic debris in the base of the posterior femoral neck and heterotopic bone formation (fused to anterolateral femoral head) as a result of a prior gunshot wound and no evidence of osteoarthritis or fracture at that time. Other treatment records show the Veteran complained of pain in his left hip at the site of his former gunshot wound in January 2008. In February 2008, he reported experiencing tingling and numbness down his leg and up his back and noted that his hip pain was “nagging” and awoke him at night. In July 2012, the Veteran was referred by his primary care physician for right posterior lateral pain and back pain, which went up the mid-back and radiated down bilaterally, and he reported tingling of all the left toes. The Veteran has been diagnosed with degeneration of the intervertebral disc and arthralgia of the hip pertaining to pain on rotation and pain in the groin. The Veteran has attributed his right hip and low back disorders to the problems with his left hip. A May 2017 VA physician has provided a letter noting that x-rays of the spine and hips showed some arthritic changes to the right hip and in the left hip “consistent with previous injury.” The Veteran was provided a VA examination in August 1975 prior to his more recent diagnoses. Therefore, the Board finds that an additional VA examination and medical opinion are needed. Additionally, the Veteran has written to VA that he receives disability benefits from the Social Security Administration (SSA). Although the evidence pertaining to SSA disability benefits would not affect the outcome of his earlier effective date claim, the outstanding records may pertain to his service connection claims. Therefore, the RO should attempt to secure those records. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hips and back. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. The AOJ should request a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which such a decision was based. If the search for such a decision has negative results, the claims file should be properly documented as to the unavailability of the decision. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left hip, right hip, and back disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and lay assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) Regarding the Veteran’s left hip, the examiner should identify all current diagnoses. For each diagnosis identified, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran’s military service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. If the disorder clearly and unmistakably preexisted that period of service, the examiner should state whether the disorder increased in severity during service. If so, the examiner should indicate whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented a permanent worsening or “aggravation” of the disorder beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. If the disorder did not clearly and unmistakably preexist the Veteran’s service, the examiner should state whether it is at least as likely as not that the disorder manifested during service or is otherwise causally or etiologically related thereto, to include any symptomatology, injury, or duties therein. (b) The examiner should state whether it is at least as likely as not that the Veteran has a right hip disorder that manifested in or is otherwise related to his military service. The examiner should also state whether it is at least as likely as not that any current right hip disorder is either caused by or permanently aggravated by a left hip disorder. (c) The examiner should state whether it is at least as likely as not that the Veteran has a back disorder that manifested in or is otherwise related to his military service. The examiner should also state whether it is at least as likely as not that any current back disorder is either caused by or permanently aggravated by a left hip disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Kuczynski