Citation Nr: 18149948 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-15 194 DATE: November 14, 2018 ORDER Entitlement to an effective date earlier than August 2, 1991, for the grant of a separate compensable evaluation for infectious cystic acne of the face is denied. Entitlement to an effective date earlier than December 11, 2003, for the grant of service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date earlier than December 11, 2003, for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for acne arthritis syndrome in July 1989, within one year of his separation from active duty service. 2. The date entitlement arose for infectious cystic acne of the face associated with service-connected acne arthritis syndrome was August 2, 1991, the date a medical treatment record documented some recurrence of numerous large severe cysts on the Veteran’s face and upper back. 3. The date entitlement arose for peripheral neuropathy of the left lower extremity associated with service-connected acne arthritis syndrome was December 11, 2003, the date a private neurologist diagnosed the Veteran as having chronic inflammatory polyneuropathy related to his service-connected acne arthritis syndrome. 4. The date entitlement arose for peripheral neuropathy of the right lower extremity associated with service-connected acne arthritis syndrome was December 11, 2003, the date a private neurologist diagnosed the Veteran as having chronic inflammatory polyneuropathy related to his service-connected acne arthritis syndrome. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than August 2, 1991, for the grant of a separate compensable evaluation for infectious cystic acne of the face have not been met. 38 U.S.C. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2017). 2. The criteria for entitlement to an effective date earlier than December 11, 2003, for the grant of service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2017). 3. The criteria for entitlement to an effective date earlier than December 11, 2003, for the grant of service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to June 1989. With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran seeks earlier effective dates for the grant of a separate compensable evaluation for infectious cystic acne of the face, as well as for the grant of service connection for peripheral neuropathy of the left and right lower extremities. By way of history, the Veteran separated from active duty service in June 26, 1989 after the Medical Board determined that he was unable to fulfill the duties of an active duty member due to symptomatology associated with a diagnosis of acne arthritis syndrome. Thereafter, in July 1989, the Veteran filed a claim of entitlement to service connection for “acne arthritis syndrome.” In a December 1989 Rating Decision, the RO granted entitlement to service connection for acne arthritis syndrome and assigned an effective date of June 27, 1989, the day following the Veteran’s separation from active duty service. In correspondence received on June 8, 1992, the Veteran requested an increased evaluation for his service-connected acne arthritis syndrome, explaining that he was experiencing back problems as well as partial paralysis of the hips and legs. In correspondence dated in June 1992, the RO informed the Veteran that it needed evidence that his service-connected acne arthritis increased in severity. In response, in correspondence dated in July 1992, the Veteran indicated that he received treatment at the VA outpatient clinic in El Paso, Texas. However, in correspondence dated in October 1992, the RO informed the Veteran that it denied his claim for an increased evaluation because he did not submit medical evidence in support of his claim. On August 31, 2000, the Veteran again filed a claim of entitlement to an increased evaluation for his service-connected acne arthritis syndrome. Following an October 2000 VA Joints examination, a November 2000 Rating Decision granted entitlement to a separate 30 percent evaluation for infectious cystic acne of the face under Diagnostic Codes 7899-7819 (rated by analogy to new, benign skin growths), effective August 31, 2000, the date of the Veteran’s claim for an increased evaluation. In correspondence received on August 31, 2001, within a year of the November 2000 Rating Decision, the Veteran filed claims for increased evaluations for his service-connected acne arthritis syndrome and infectious cystic acne of the face, and submitted new VA treatment records in support of these claims. In November 2001, the Veteran filed a claim for an earlier effective date for the grant of entitlement to service connection for infectious cystic acne of the face, arguing that the effective date should have been July 1989, the date he filed his initial claim of entitlement to service connection for acne arthritis syndrome. A January 2002 Rating Decision denied the Veteran’s claims and found that there was no clear and unmistakable error in the December 1989 Rating Decision. In response, the Veteran submitted a March 2002 Notice of Disagreement arguing that the effective date for his separate evaluation for infectious cystic acne should be June 27, 1989. The RO issued a Statement of the Case in December 2002 which denied an effective date prior to August 31, 2000, and the Veteran submitted a VA Form 9 in January 2003. However, following a Decision Review Officer (DRO) hearing conducted in June 2003, the RO issued a Rating Decision in June 2003 which established a new effective date of August 2, 1991, the date that VA outpatient treatment records first noted severe scarring of the face. Significantly, in response to this Rating Decision, the Veteran expressed that he was satisfied with the August 2, 1991, effective date and withdrew his appeal with respect to that issue. A January 2003 Rating Decision recharacterized the Veteran’s “acne arthritis syndrome” as “acute arthritis syndrome,” but continued the 20 percent evaluation for the disability. A February 2004 Rating Decision granted entitlement to a temporary 100 percent prestabilization rating effective June 27, 1989, the day following the Veteran’s separation from active duty service pursuant to 38 C.F.R. § 4.28. This was based on a finding by the RO that the Veteran’s service-connected acute arthritis syndrome was an unstabilized condition with severe disability that rendered substantial gainful employment unfeasible or unadvisable immediately following the Veteran’s separation from service. Prestabilization rating assignments apply to the immediate discharge period and are based on a degree of impairment of a veteran's employability. For an unstabilized condition with a severe disability where substantially gainful employment is not feasible or advisable, a 100 percent rating is to be assigned for the twelve-month period following discharge from service. Here, effective July 1, 1990, after the end of twelve months following the Veteran’s June 27, 1989, discharge from service, a 20 percent evaluation for acute arthritis syndrome was continued under Diagnostic Codes 5099-5002. However, in correspondences received on August 31, 2004, and October 8, 2004, the Veteran claimed entitlement to an effective date earlier than August 2, 1991, for the grant of a separate evaluation for infectious cystic acne of the face, reiterating that the effective date should be from the time he separated from service in June 1989. In addition, the Veteran also filed a claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, contending that the “polyarthralgia” noted in his service treatment records was the same as the peripheral neuropathy with which he was now diagnosed. In an April 2005 Rating Decision, the RO granted entitlement to service connection for peripheral neuropathy of the right and left lower extremities secondary to his acute arthritis syndrome, and assigned an effective date of August 31, 2004, the date the claim of entitlement to service connection for these disabilities was received. The April 2005 Rating Decision also denied the claim for an earlier effective date for infectious cystic acne on the basis that there was no CUE in the June 2003 Rating Decision to grant compensation effective August 2, 1991. In response, the Veteran filed another Notice of Disagreement, arguing that the effective dates for his service-connected peripheral neuropathy and infectious cystic acne of the face should both be June 27, 1989, the day following his separation from active duty service. In a July 2009 Rating Decision, the RO found CUE in its previously-assigned effective dates for peripheral neuropathy of the left and right lower extremities and established new effective dates of December 11, 2003, the date that a private neurological consultation first diagnosed the Veteran as having polyneuropathy due to his history of infection from cystic acne with sepsis. Nonetheless, the Veteran continued to disagree with the effective dates assigned for all three disabilities, maintaining that the proper effective date was June 27, 1989. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation “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(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation “will be the date of receipt of the claim or the date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. In addition, “[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the “[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim.” 38 C.F.R. § 3.400(o)(2). Thus, if a claim is received after a Veteran received treatment for, or assessment of, a service-connected disability, and the treatment/assessment occurred within the prior one-year period and showed an increase in disability, then the effective date will be assigned as of that date of treatment/assessment. The Court has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable increase for this purpose is one to the next disability level” provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Id. at 521. However, the Court has clarified that 38 C.F.R. § 3.400(o)(2) is applicable only where an increase in disability precedes a claim for an increased disability rating. In other cases, the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125 (1997). Section 3.400(o)(2) is intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty and is not intended to cover situations where a disability worsened gradually and imperceptibly over an extended period of time and there is no evidence of entitlement to increased evaluation prior to the date of claim. See VAOPGCPREC 12-98 (Sept. 23, 1998). Thus, the Court and VA’s General Counsel have interpreted the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 as meaning that if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98 (1998). Any communication or action, indicating an intent to apply for a VA benefit, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Also, with regard to the terms “application” or “claim,” the Board notes that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, provided 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. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Evidence received from a private physician or layperson will also be accepted as a claim for an increase or to reopen when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2). In this regard, a “report of examination or hospitalization” under § 3.157(b) should “indicate that [a] Veteran’s service-connected disability [has] worsened since the time it was last evaluated.” Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term “report of examination” under § 3.157(b) “implies that the medical record in question must describe the results of a specific, particular examination.” A letter may qualify if it, for instance, was “generated in connection with any particular VA medical examination” rather than, for example, a “claim for Social Security disability benefits that was pending at the time it was written.” Massie v. Shinseki, 25 Vet. App. at 133. Other considerations include whether the letter relates “the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation,” rather than “present[ing] a very short summation of [the Veteran’s] general condition, as [the physician] had observed it over” time. Id. Under the old regulations, "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2015); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2017). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon, 12 Vet. App. at 35 (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). With respect to all of the Veteran’s claims, the Board emphasizes that he was awarded a temporary 100 percent prestabilization rating effective June 27, 1989, the day following his separation from active duty service pursuant to 38 C.F.R. § 4.28. This temporary 100 percent rating encompassed the Veteran’s service-connected acute arthritis syndrome and all associated symptoms and complications for a period of twelve months, through June 30, 1990, at which time his evaluation for acute arthritis syndrome and all associated symptomatology reverted to 20 percent, effective July 1, 1990. As such, separate effective dates for the grant of entitlement to service connection for infectious cystic acne of the face or peripheral neuropathy of the lower extremities is not warranted prior to July 1, 1990. With respect to the claim for entitlement to an effective date earlier than August 2, 1991, for the grant of a separate compensable evaluation for infectious cystic acne of the face, the RO established the current effective date based on an August 2, 1991, consultation note from the VA outpatient clinic in El Paso, Texas. This outpatient treatment note indicated that the Veteran reported “some recurrence” of the “numerous large severe cysts on face and upper back” that he experienced while in service, and he was prescribed tetracycline. He was thereafter diagnosed as having cystic acne in an October 4, 1991, VA progress note. At that time, Diagnostic Code 7819 concerned ratings for new, benign skin growths, which were to be rated as scars, disfigurement, etc. Under Diagnostic Code 7804, a maximum 10 percent rating is assigned for superficial scars which are tender and painful on objective demonstration. Under Diagnostic Code 7805, scars, other, are rated on limitation on function of the part affected. After review of the record, the Board finds that there is no evidence to support a separate compensable evaluation for infectious cystic acne of the face for the time period between the expiration of the 100 percent prestabilization rating on June 30, 1990, and the current August 2, 1991, effective date for entitlement to a separate evaluation for cystic acne. The August 2, 1991, VA outpatient consultation note suggested that this was the first recurrence of cystic acne since service. As such, an effective date prior to August 2, 1991, for a grant of a separate evaluation for infectious cystic acne of the face is denied. With respect to the claims of entitlement to effective dates earlier than December 11, 2003, for the grant of service connection for peripheral neuropathy of the right and left lower extremities, the RO established the current effective dates based on a December 11, 2003, Initial Neurological Consultation from private neurologist R. B. Veazey, M.D., which indicated that “patient has a history of diffuse infection and sepsis leading to what sounds like an inflammatory polyneuropathy. He has likely developed chronic inflammatory polyneuropathy with this recent flare-up of symptoms.” After review of the record, the Board finds that there is no evidence to support a diagnosis of peripheral neuropathy prior to December 11, 2003. Although the Veteran reported “partial paralysis of the hips and legs” in correspondence dated on June 8, 1992, there is no objective medical evidence confirming a diagnosis of peripheral neuropathy until December 11, 2003. To the contrary, although the Veteran’s in-service Medical Board proceedings revealed that he was hospitalized for pain and stiffness in his left hip after being unable to ambulate, there were no findings of neuropathy at that time. To this point, the Board notes that although the Veteran has attempted to conflate his in-service diagnosis of polyarthralgia with peripheral neuropathy, the term “polyarthralgia” merely refers to multiple joint pain and does not suggest any neurological involvement. A December 1990 neurological report was “completely normal” and “basically negative.” Similarly, electromyography (EMG) and nerve conduction studies performed in October 1992 resulted in normal findings, with no diagnosis of neuropathy. Thus, the Board finds that December 11, 2003, constitutes the date entitlement to service connection for peripheral neuropathy of the right and left lower extremities arose. As such, effective dates prior to December 11, 2003, for the grant of entitlement to service connection for peripheral neuropathy of the right and left lower extremities is denied. To the extent that the Veteran alleges clear and unmistakable error (CUE) in any of the prior Rating Decisions assigning the current effective dates for infectious cystic acne of the face and/or peripheral neuropathy of the right and left lower extremities, if a claimant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what is the alleged error. Further, 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 claimant is only asserting disagreement with how the RO evaluated the facts before it, or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, then 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). As such, the Veteran’s appeal is denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel