Citation Nr: 18155295 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-57 117 DATE: December 4, 2018 ORDER Entitlement to an earlier effective date prior to April 3, 2014, for the award of service connection for a right knee injury is denied. FINDING OF FACT 1. The Veteran’s claim seeking entitlement to service connection for bilateral hyperextension of the knees was initially denied in a January 1981 rating decision that became final. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 2. In an April 2015 rating decision, the Veteran was granted service connection for his right knee injury; the RO assigned the effective date for the Veteran’s disability as April 3, 2014, the date the application to reopen was received. 3. The January 1981 rating decision that denied service connection for a right knee injury was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. CONCLUSION OF LAW The criteria for assignment of an earlier effective date prior to April 3, 2014, for the award of service connection for a right knee injury, to include as a result of clear and unmistakable error (CUE) in a January 1981 rating decision, have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1973 to September 1974. Entitlement to an earlier effective date prior to April 3, 2014, for the award of service connection for a right knee injury, to include as whether there was clear and unmistakable error (CUE) in a January 1981 rating decision The Veteran seeks earlier effective dates for the award of service connection for a right knee injury. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claim is not warranted. Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110 (a); 38 C.F.R. 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. 3.400 (b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a) (2013). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). Regulations defining a “claim” were revised effective March 24, 2015, and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative 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 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. A failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in “grave procedural error” to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Analysis The Veteran’s initial claim seeking service connection for a bilateral knee condition was received in September 1980. In a January 1981 rating decision, the RO denied the claim. The Veteran submitted a Notice of Disagreement in May 1981. A Statement of the Case was issued in June 1981, but the Veteran did not timely perfect his appeal, and the rating decision became final In August 1988, the Veteran submitted a VA Form 21-526, again claiming service connection for his knees. In a VA notification letter dated on August 25, 1988, the Veteran was informed that he needed to submit additional evidence showing that his claimed disabilities have been treated since discharge from service. Further, the Veteran had one year from the date of the letter to submit this evidence. Another notification letter dated on November 4, 1988, asked the Veteran to provide medical evidence showing that his claimed knee injuries were incurred in or aggravated by his active duty military service. The letter informed the Veteran that no action would be taken on the Veteran’s claim if the requested information was not received. On November 15, 1988, the Veteran submitted a VA Form 21-4138 and stated that he wanted to submit the information requested in the VA notice letters. VA sent a third notice letter dated January 19, 1988 again informing him of the information necessary to process his claim. However, the Veteran did not provide any further medical records in support of his claim. On April 3, 2014, the Veteran submitted a VA Form 21-526EZ, again claiming service connection for a right knee disability. In an April 2015 rating decision, the Veteran was granted service connection for a right knee injury. He was assigned an effective date from April 3, 2014, the date of the petition to reopen his claim. The Board finds the Veteran is already in receipt of the earliest possible effective date for this disability as the effective date assigned is the date the Veteran’s petition to reopen his service connection claim for a right knee disability was received. A thorough review of the claims file shows no written communication by either the Veteran or any of his representatives evidencing any intent to seek compensation disability benefits for his now service-connected right knee injury prior to April 3, 2014, and since the date of the January 1981 rating decision. As such, the claim must be denied. The only other possible basis for an effective date earlier than that assigned is to show clear and unmistakable error (CUE) in a prior final rating decision. See 38 C.F.R. § 3.105 (a). For the reasons that follow, the Board concludes that Veteran’s CUE claim cannot prevail. The January 1981 rating decision was not clearly and unmistakably erroneous. The Veteran appears to argue in his September 2015 Notice of Disagreement that VA did not have all the available service treatment records before it when denying his claim, and the failure to obtain and consider these records amounted to clear error. The Board finds that the correct facts, as they were known at the time, were before the RO at the time of the January 1981 rating decision. The evidence included the Veteran’s service medical records, as well as a December 1980 VA examination showing that an x-ray of the Veteran’s right knee did not reveal any gross abnormality. However, none of these records related the Veteran’s claimed right knee disability to his active duty service or within a presumptive period. Following a review of the evidence of record, the Board finds that at the time of the January 1981 rating decision denying the Veteran’s service connection claim, the claims file did not contain evidence that the Veteran’s right knee disability was causally related to, or aggravated by, active duty service. There was also no evidence that the Veteran’s right knee disability manifested within one year of active duty service. See 38 C.F.R. § 3.307 (a)(3). The January 1981 rating decision was properly based on the evidence of record at the time of that decision. The evidence of record is against a finding that there was CUE in the January 1981 rating decision. The evidence of record does not support a finding that the correct facts, as they were known at the time of the January 1981 rating decision, were not before the adjudicator, or that regulatory provisions then in extant at the time were incorrectly applied. A claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. The evidence does not support a finding that there was an undebatable error in the January 1981 rating decision which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). In sum, there is no showing that the RO committed CUE in the January 1981 rating decision. As CUE has not been demonstrated, the claim for an earlier effective date based on CUE must be denied. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel