Citation Nr: 18148706 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-31 335A DATE: November 8, 2018 ORDER The June 7, 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision assigning an effective date of January 10, 2008 for the grant of service connection for generalized anxiety disorder (anxiety) was not clearly and unmistakably erroneous (CUE). The February 18, 2014 RO rating decision assigning an effective date of June 23, 2012 for the grant of a total disability rating based on individual unemployability due to service-connected disability (TDIU) was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the June 7, 2011 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it assigned an effective date of January 10, 2008 for the grant of service connection for anxiety. 2. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the February 18, 2014 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it assigned an effective date of June 23, 2012 for the grant of a TDIU. CONCLUSIONS OF LAW 1. The June 7, 2011 rating decision assigning an effective date of January 10, 2008 for the grant of service connection for anxiety was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 2. The February 18, 2014 rating decision assigning an effective date of June 23, 2012 for the grant of a TDIU was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from November 1987 to December 1987. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the RO in Cleveland, Ohio. Here, the Veteran is seeking earlier effective dates for the grant of service connection for anxiety and the grant of a TDIU. By way of history, in a May 2011 decision, the Board granted service connection for anxiety. Subsequently, the RO, in a June 2011 rating decision, effectuated the grant of service connection and assigned an initial disability rating of 10 percent effective January 10, 2008. In a June 2011 notice of disagreement (NOD), the Veteran disagreed with the initial disability rating assigned, and made no mention of a disagreement with the effective date assigned. Subsequently, the Veteran sought a TDIU, which was denied in a February 2013 RO rating decision and then appealed. In February 2014, the RO issued a rating decision and corresponding statement of the case (SOC) in which the Veteran was granted an increased 30 percent disability rating for the service connected anxiety from January 10, 2008, an increased 70 percent disability rating from June 23, 2012, and a TDIU from June 23, 2012. A TDIU prior to June 23, 2012 was denied. The Veteran did not perfect the appeal after the issuance of the February 2014 SOC, and the prior rating decisions became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). As the prior rating decisions became final, an earlier effective date for the grant of service connection for anxiety and/or a TDIU can only be granted upon a finding of CUE in the prior final rating decisions. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) (once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE). The Board notes that service connection for a psychiatric disorder was denied in a March 2004 rating decision. This service connection denial was subsequently upheld in an August 2006 Board decision. RO decisions that are appealed to the Board become subsumed by the Board decision issued in that case. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). As such, the Board does not have jurisdiction to consider whether there was CUE in the March 2004 rating decision that denied service connection for a psychiatric disorder. Further, RO CUE and Board CUE are two distinct issues with differing procedural requirements and concerns. See 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400 1411 (2017) (procedural requirements for Board CUE claims). Therefore, the Board also does not have jurisdiction to consider whether there was CUE in the August 2006 Board decision denying service connection for a psychiatric disorder. During the course of this appeal the Veteran indicated that there may be CUE in the effective date assigned for the grant of a 70 percent disability rating for the service connected anxiety in the February 2014 rating decision and SOC. This issue has not been considered by the RO and the Board does not have jurisdiction over it at this time. Further, even if the Board did have jurisdiction over the issue, as will be discussed below, there are specific CUE pleading requirements, and failure to properly plead a CUE argument warrants dismissal. As no properly pled argument has been received by VA on this question, the issue of CUE in the effective date assigned for the grant of a 70 percent disability rating for the service connected anxiety would be dismissed in the instant matter even if the Board did have jurisdiction over the question. The Veteran testified from Cleveland, Ohio, at a November 2016 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issues on appeal. CUE Law and Regulation Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory 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. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither 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 the 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 v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the June 7, 2011 and February 18, 2014, rating decisions became final, as no new and material evidence was received during the relevant one year appeal periods following the decisions, and the appeal of the aforementioned rating decisions was not perfected following the issuance of the February 28, 2014 SOC. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. Further, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). 1. CUE in Effective Date for Anxiety At the November 2016 Board videoconference hearing, and elsewhere throughout the record, the Veteran argued that an effective date prior to January 10, 2008 for the grant of service connection for anxiety should have been assigned by the RO at the time of the June 7, 2011 rating decision effectuating the May 2011 Board decision granting service connection for anxiety, because the evidence clearly and unmistakably showed that the Veteran was first diagnosed with a mental disorder in 2003 or even earlier. At the time of the June 7, 2011 RO rating decision, unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim was to 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(a) (2006). Title 38 of the Code of Federal Regulations clarified that an award of direct service connection would be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date would be the date of receipt of the appellant’s claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2011). Additionally, at the time of the June 7, 2011 RO rating decision, a “claim” was defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA was required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155 (2011); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155 (2011), any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defined application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim was the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) (2011). The record reflects that on January 10, 2008, VA received a letter from the Veteran indicating that he was now diagnosed with the psychiatric disorder of anxiety. Supporting documentation was provided with the letter. Per the June 7, 2011 RO rating decision, the RO found this to be an informal claim for service connection for the psychiatric disorder of anxiety. The Board notes that the Veteran has not argued that it was CUE for the RO to find that January 10, 2008, was the date of informal claim for service connection for the psychiatric disorder of anxiety. Rather, the Veteran argues that an effective date prior to January 10, 2008 should have been assigned because the January 2008 medical record accompanying the informal claim showed that the Veteran had been treated for anxiety since at least November 2003. While the Board is sympathetic to the Veteran’s argument that it was CUE to assign an effective date of January 10, 2008 for the service connected anxiety when the evidence showed treatment since at least 2003, the controlling regulation in effect at the time of the June 7, 2011 rating decision clearly and specifically provided that, unless the claim was received within one year of separation from service (which is not the case here), the effective date would be the date of receipt of claim, or the date on which entitlement arose, whichever was later. 38 C.F.R. § 3.400(b)(2)(i). Here, while entitlement may have arisen prior to January 10, 2008, because the claim for service connection for anxiety was not received until the later date of January 10, 2008, per the regulation in effect at the time of the June 7, 2011 rating decision, it was not CUE for the RO to assign an effective date of January 10, 2008 for the grant of service connection for anxiety. In sum, the Board finds that the evidence has not established that the correct facts, as known at the time, were not before the RO at the time of the June 7, 2011 rating decision granting service connection for anxiety and assigning an effective date of January 10, 2008, and has not shown that any incorrect application of law was outcome determinative (i.e., the outcome would have been manifestly different). Per the evidence of record, the Veteran’s original claim for service connection for anxiety was received on January 10, 2008, which was many years after separation from service. Absent any evidence or argument to the contrary, the Board finds there was no CUE in the June 7, 2011 rating decision granting service connection for anxiety and assigning an effective date of January 10, 2008. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43-44. 2. CUE in Effective Date for TDIU At the November 2016 Board videoconference hearing, and elsewhere throughout the record, the Veteran argued that an effective date prior to June 23, 2012 for the grant of a TDIU should have been assigned by the RO at the time of the February 18, 2014 rating decision, because the evidence clearly and unmistakably showed that the Veteran has not worked since the year 2000. At the time of the February 18, 2014 rating decision, then, as now, TDIU could be assigned when the disabled person was, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. 38 C.F.R. § 4.16 (2014). Anxiety was the only disability for which the Veteran was service connected at the time of the February 18, 2014 rating decision. As such, the question before the RO at the time of the February 18, 2014 rating decision was whether the service connected anxiety alone was so disabling as to render the Veteran unemployable prior to June 23, 2012. Per the February 18, 2014 rating decision, the RO reviewed the Veteran’s Social Security Administration (SSA) records from 2003, which showed that the Veteran had been found disabled for SSA benefits purposes since April 2000 due to non service connected orthopedic disorders of the knees and back. As noted by the RO, there was no indication that the Veteran’s mental health impacted employability at the time of the May 2003 SSA decision. Further, the February 18, 2014 rating decision reflects that the RO also reviewed the Veteran’s VA treatment records from August 2011 to February 2014. Review of the February 18, 2014 rating decision and corresponding February 2014 SOC conveys that, after considering the relevant evidence of record, the RO found that, prior to June 23, 2012, the Veteran’s unemployability was due to non service connected orthopedic disabilities, and not the symptoms of the service connected anxiety alone. As such, the Veteran’s argument that a TDIU should have been granted prior to June 23, 2012 because of evidence showing unemployability on or about the year 2000 appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. For this reason, the Board finds was no CUE in the February 18, 2014 RO rating decision assigning an effective date of June 23, 2012 for the grant of a TDIU. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel