Citation Nr: 18154015 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-44 030 DATE: November 29, 2018 ORDER The claim of entitlement to an effective date prior to December 19, 2012, for a 30 percent increase rating for the Veteran’s gunshot wound to the mid left leg, to include on the basis that the initial rating of 10 percent in an October 1977 rating decision constitutes clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating on December 19, 2012 for his service connected gunshot wound, and prior to that time, there was no formal claim, informal claim, or written intent to file a claim of increased rating for a gunshot wound following the October 1977 initial rating decision. 2. The Veteran was granted an increased rating of 30 percent in a May 2014 RO rating decision with an effective date of December 19, 2012. 3. The October 1977 Regional Office (RO) rating decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions then in effect were ignored or incorrectly applied. 4. An unappealed October 1977 rating decision granted a March 1977 in-service claim for service connection and a 10 percent rating for a gunshot wound to the mid left leg (gunshot wound). CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an effective date prior to December 19, 2012, for a 30 percent disability evaluation for the residuals of a gunshot wound have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. Clear and unmistakable error (CUE) is not shown in the October 1977 rating decision. 38 U.S.C. §§ 5107,7111 (2012); 38 C.F.R. § 20.1411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from October 1974 to March 1977. This matter is before the Board of Veteran’s Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) RO in Detroit, Michigan. Analysis The Veteran contends that he is entitled to an effective date prior to December 19, 2012, for the assigned 30 percent rating for a gunshot wound. The Veteran has asserted that he should be assigned a March 1977 effective date for a 30 percent rating for a gunshot wound, as that was the date of his initial claim. As outlined below, the preponderance of the evidence of record is against the Veteran’s claim. Generally, the effective date of an award of disability compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. The earliest effective date for an increased rating for disability compensation is when based on all the evidence of record an increase in that disability has occurred that can be factually ascertainable, if a complete claim or intent to file a claim is received, or within one (1) year from that date, if not, then the date of receipt of the claim shall be the effective date. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). A review of the record shows that the Veteran in March 1977 filed an initial claim for entitlement to service connection for a gunshot wound. The Veteran’s initial claim was granted and he was granted a rating of 10 percent service connection for a gunshot wound in an October 1977 rating decision with an effective date of March 22, 1977. The Veteran did not file a timely notice of disagreement and the October 1977 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). The Veteran filed a claim for an increased rating for his gunshot wound in December 2012 and was denied an increase in October 2013 as the Veteran did not attend his scheduled VA examination in May 2013. However, in a May 2014 rating decision, the Veteran was granted an increased rating of 30 percent for his gunshot wound with an effective date of December 19, 2012, the date of the previous filed claim. There was no indication in the Veteran’s record showing that he attempted to institute a claim either formally or informally at any time prior to December 2012 for an increased rating for his gunshot wound. The Board finds that after reviewing the record from the date of the claim and one-year preceding, December 18, 2012, to December 19, 2011, there is no factual basis for an increased rating from 10 percent to 30 percent. The Veteran throughout multiple VA examinations for different issues does not mention a worsening of his gunshot wound. The Veteran’s records show that in June 2012 he blames his gunshot wound when he falls or stumbles. The Veteran’s lay statements of stumbling and falling are credible and competent as he is seen and treated for a fall and pain in his right knee. However, these statements made by the Veteran are not competent to designate that his falling is due to his gunshot wound and not some other issue as the Veteran does not have specialized education, training, or experience to determine the cause of his fall or stumbling. 38 C.F.R. § 3.159(a) (which indicates that competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience). Even if the Veteran were competent to make the causal connection between his gunshot wound and his fall in June 2012, that would not be enough evidence to show a worsening for an increased rating of 30 percent before the December 2012 date of claim. Beyond these two statements in June 2012, the Veteran does not mention his gunshot wound during the December 2011 to December 2012 time frame in any medical treatment records or lay statements. Therefore, the date of receipt of the claim, December 19, 2012, for increased rating is the appropriate effective date. Accordingly, the Board finds that the claim for an earlier effective date for a 30 percent rating for a gunshot wound is denied. The Board recognizes that the Veteran has alleged that the October 1977 rating decision granting only a 10 percent disability rating for his gunshot wound constituted clear and unmistakable error (CUE). For a CUE claim to be valid an error must have been made in the prior adjudication of the claim; such as the statutory or regulatory provisions in effect at the time were incorrectly applied. Even more so that the error made must be “undebatable” and so egregious that had it not been made, it would have changed the outcome. A determination of CUE is based on the record and law that existed at the time of the prior adjudication. A broad allegation that “failure to follow the regulations” or “failure to give due process” or any general non-specific claim of “error” cannot meet the restrictive definition of CUE. See Phillips v. Brown, 10 Vet. App. 25 (1997); Damrel v Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3. Vet. App. 310 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40 (1993). CUE is not a mere misinterpretation of facts, it is a very rare and specific kind of error of fact or law as to which reasonable minds could not differ that the result would be changed but for the error. See Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991); Fugo v. Brown, 6 Vet. App. 40 (1993). The Veteran contends that CUE was committed in the October 1977 rating decision on the basis that the facts known at the time were incorrectly applied to the compensation ratings of the Veteran’s gunshot wound. That the rating officer (RO) should have seen the symptoms of the Veteran in October 1977 of the gunshot wound as “severe” and not “moderate” under Diagnostic Code 5312 (now 5311). See 38 C.F.R. § 4.73 (2018). The Board does not find the Veteran’s argument persuasive, as the rating decision of October 1977 reviewed the service treatment records of the Veteran and the VA examination which occurred in October 1977, and all available records at that time. The rating decision mentions the service treatment records, a neurological examination, and quotes from the Veteran regarding his disability. The Board finds no indication in the record that the rating decision failed to consider all the evidence of record at that time and correctly applied the facts for an accurate rating decision. The Board further finds that the RO correctly applied the regulatory provisions in effect at that time. Therefore, the Board finds that no undebatable error was made by the RO and the allegation of CUE is without merit as he merely disagrees with the weighing of the evidence. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. The evidence before the Board here indicates that the Veteran’s claims must be denied as the preponderance of the evidence is against the Veteran’s claims, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel