Citation Nr: 18151844 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-11 012 DATE: November 20, 2018 ORDER Entitlement to an effective date prior to November 27, 2012, for service connection for a left ankle sprain is denied. Entitlement to an effective date prior to November 27, 2012, for service connection for left foot plantar fasciitis is denied. FINDINGS OF FACT 1. The Veteran separated from service on March 11, 2005. 2. On November 27, 2012, the Veteran filed formal claims for service connection for a left ankle sprain and plantar fasciitis of the left foot. 3. A January 2014 rating decision established service connection for a left ankle sprain and plantar fasciitis of the left foot, effective November 27, 2012, the date of the filing of the formal claim for service connection. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date, prior to November 27, 2012, for service connection for a left ankle sprain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.816(c). 2. The criteria for entitlement to an earlier effective date, prior to November 27, 2012, for service connection for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.816(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an earlier effective date, prior to November 27, 2012, for service connection for a left ankle sprain. 2. Entitlement to an earlier effective date, prior to November 27, 2012, for service connection for left foot plantar fasciitis. Generally, the effective date for service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran separated from service in March 2005. The Veteran filed formal claims for service connection for a left ankle sprain and plantar fasciitis of the left foot on November 27, 2012. As the Veteran filed claims for service connection more than a year after separation from service, the earliest possible effective date for service connection is the date of the filing of the claims, November 27, 2012. The Veteran claims that service connection for the claimed disabilities should be effective to the date of his March 2005 separation from service. In various statements, the Veteran indicated that he sought medical treatment for injuries incurred during service in January 2006 at the VA Medical Center in North Chicago, Illinois (VAMC). At that time, he talked to a program specialist who advised him that he was ineligible for benefits. The record contains a January 6, 2006, letter, written by a program specialist at the VAMC, advising the Veteran that he was ineligible for VA benefits, because he had not completed 24 months of continuous active duty service. The specialist told the Veteran that all appointments and services would be discontinued, and that he would be billed for services already provided. The specialist indicated that, if the Veteran did not have private health insurance, he should seek care form his local community agencies. The specialist advised that, if the Veteran had any questions, he should call the VAMC’s eligibility clerk. After a review of the record, the Board finds that the Veteran did not file any formal or informal claim for service connection for any left ankle and left foot disability until November 27, 2012. In a March 2013 letter, the Veteran stated that he wanted service connection for his disabilities backdated to at least 2006, the date he “initially sought out compensation and treatment” at the VAMC. The Veteran wrote that, while visiting the VAMC, he was “denied medical care and the ability to speak to a counselor about filing a compensation claim for payment,” because the VAMC program specialist “instructed” him that he was ineligible. Of note, in the March 2013 letter, the Veteran did not report filing any claim for compensation in 2006. In a January 2014 letter, addressed to his congressman, the Veteran stated that he had intended to file a claim and see a VA doctor in January 2006. However, even though he had all the necessary paperwork to be processed, a VA representative told him he could not file a compensation claim or see a VA medical doctor, because he was “not a veteran.” The Veteran stated that he filed the necessary papers to start a claim at the VAMC, but it did not matter as they sent him a letter of denial. The Veteran stated that the file was most likely destroyed and would never be found. The Veteran stated that, had the VAMC “looked into this further,” the VAMC would have discovered that he was entitled to benefits, including compensation for his injuries. In a March 2014 notice of disagreement, the Veteran's representative stated that the Veteran “filed for ankle sprain and plantar fasciitis, left foot and was told via a letter … dated January 6, 2006 that he was not eligible for VA benefits ….” The representative asked that the award for service connection for be dated back to the Veteran's “original file date.” In a March 2016 statement, attached to the Veteran's substantive appeal to the Board, the Veteran's representative argued that the effective date for service connection for left foot and ankle disabilities should have been the date of separation from service. The representative stated that the VAMC program specialist who advised the Veteran that he was ineligible committed CUE by barring him from submitting a claim for benefits and treatment. The representative further stated that the Veteran filed an informal claim for benefits “in the January 6, 2006, letter to VA for compensation and treatment.” Therefore, according to the representative, the Veteran was entitled to benefits from the date of separation from service which occurred within a year of the filing of the purported informal claim. 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." In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40 (1993). The United States Court of Appeals for Veterans Claims has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator, 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 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). If a Veteran wants 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 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999). 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 (1994). Further, VA's failure in the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003). The Board finds that the Veteran is not entitled to an earlier effective date due to CUE. In a March 2013 letter, the Veteran stated that he did not file a claim for service connection for his disabilities in January 2006, because “he was denied the ability to speak to a counselor about filing a compensation claim for payment,” presumably by the VAMC program specialist who told him he was ineligible. In a January 2014 letter, the Veteran again stated that he intended to file a claim, but did not do so because a VAMC employee told him that he was ineligible. The Board notes that the January 6, 2006, letter from the program specialist is not a denial of any formal or informal claim for service connection for left foot and ankle disabilities. In the January 6, 2006, letter, the VAMC program specialist advised the Veteran that he was ineligible for VA benefits regarding medical care, to specifically include no-cost medical care and medical appointments. That letter specifically informed the Veteran that he would be financially responsible for any medical care and recommends that the Veteran seek help from local community agencies if he did not have private insurance. The letter also advised the Veteran that, if he had any questions, he could speak to an eligibility clerk. The letter contains no notations indicating that the VAMC program specialist was denying any claim for service connection. In fact, in his own statements, the Veteran indicated that the program specialist, at worst, denied him “the ability to speak to a counselor about filing a compensation claim for payment.” In essence, the Veteran is claiming that the January 2006 program specialist committed CUE by failing to assist the him in filing a claim for service connection prior to November 27, 2012. VA's failure in the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003). The Veteran also claims that he actually filed an informal claim for service connection benefits that was ignored by VA. In a March 2016 statement, the Veteran’s representative wrote that the Veteran filed an informal claim “in the January 6, 2006, letter to VA for compensation and treatment.” The Board notes, prior to March 24, 2015, VA allowed Veterans to file informal claims for service connection. Although informal claims did not have to be written on the standard VA form utilized for formal claims, all those claims had to be in writing. 38 C.F.R. § 3.1(p) (2006). While the record contains a January 6, 2006, letter from the VAMC program specialist, advising the Veteran of the denial of medical services, the record does not contain any document from the Veteran requesting service connection for left foot or ankle disabilities dated prior to November 27, 2012. The Veteran stated in a January 2014 letter that he filed the necessary papers “to start a claim” in January 2006 at the VAMC, but VA had issued him a letter of denial. The record contains neither a letter from the Veteran requesting service connection or a response from VA to such a letter dated prior to November 2012. In the January 2014 letter, the Veteran stated that the VAMC probably destroyed his reported claim letter, thereby explaining its absence from the record of evidence. However, the claims file contains no indication that it is not complete. As there is a presumption of presumption of regularity with regard to processes and procedures throughout the VA administrative process, without clear evidence to the contrary, it is presumed that VA properly maintained the Veteran's file and that it contains all claims for service connection, both formal and informal, submitted by him. Warfield v. Gober, 10 Vet. App. 483 (1997). Additionally, it implies that, had the Veteran filed an informal claim for service connection, VA would have followed the proper responsive procedures required at the time, to include forwarding a formal application form to the Veteran. 38 C.F.R. §3.155(a) (2006). As the record of evidence contains neither a letter from the Veteran requesting service connection or a response from VA to such a letter dated prior to November 2012, the Board finds insufficient evidence to indicate the existence of such a letter, despite the Veteran's statements. Therefore, the Board finds that the evidence weighs against any claim for an earlier effective date due to VA’s failure to acknowledge an informal claim for service connection filed prior to November 27, 2012. As noted above, as the evidence indicates that the Veteran initially filed claims for service connection for left ankle and left foot plantar fasciitis disabilities on November 27, 2012, more than one year after separation from service. The Board finds that the preponderance of the evidence is against the assignment of any earlier effective date. Therefore, the claims for earlier effectives dates for service connection for left foot and ankle disabilities are denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel