Citation Nr: 18156636 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-27 442A DATE: December 11, 2018 ORDER The issue of revision or reversal of a January 2014 rating decision assigning an effective date of February 26, 2013, for the grant of service connection for left foot frostbite residuals on the basis of clear and unmistakable error (CUE) is denied. The issue of revision or reversal of a January 2014 rating decision assigning an effective date of February 26, 2013, for the grant of service connection for right foot frostbite residuals on the basis of CUE is denied. The issue of revision or reversal of a January 2014 rating decision assigning an effective date of February 26, 2013, for the grant of service connection for left foot neuropathy on the basis of CUE is denied. The issue of revision or reversal of a January 2014 rating decision assigning an effective date of February 26, 2013, for the grant of service connection for right foot neuropathy on the basis of CUE is denied. The issue of revision or reversal of a June 2014 rating decision assigning an effective date of December 31, 2008, for the grant of service connection for sleep apnea on the basis of CUE is denied. FINDINGS OF FACT 1. In a January 2014 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left and right foot frostbite residuals and associated neuropathy, assigning separate compensable evaluations effective from February 26, 2013, based on the date of receipt of the claims; the Veteran ultimately challenged the AOJ’s decision as to the effective date assigned for those disabilities on the basis of CUE. 2. The January 2014 rating decision does not contain outcome-determinative error in applying the law extant at that time to the facts before the adjudicator. 3. In an April 2014 decision, the Board of Veterans’ Appeals (Board) granted service connection for sleep apnea. 4. In a June 2014 rating decision, the AOJ effectuated the Board’s decision, assigning an effective date of December 31, 2008, based on the date of receipt of the claim; the Veteran ultimately challenged the AOJ’s decision as to the effective date assigned on the basis of CUE. 5. The June 2014 rating decision does not contain outcome-determinative error in applying the law extant at that time to the facts before the adjudicator. CONCLUSIONS OF LAW 1. The January 2014 rating decision does not contain CUE. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. § 3.105(a) (2017). 2. The June 2014 rating decision does not contain CUE. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to September 2006. This case comes before the Board on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA). In a September 2016 decision for a separate appeal, the Board explained the procedural history of the underlying service connection claims for the above issues, including the Veteran’s ultimate decision to pursue revisions of the rating decisions as to the effective dates assigned for the disabilities on the basis of CUE (rather that pursuing the appeals based on the notices of disagreement (NODs) to the initial rating decisions for service connection). The CUE issues have since been certified to Board for appellate review. Law and Analysis VA’s notification and assistance duties are not applicable to CUE motions. As such, no further consideration is necessary in this regard. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). Generally, a decision of the AOJ that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. If the evidence establishes CUE, the prior decision will be revised or reversed; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a). To establish CUE in a prior decision, the requirements of a three-pronged test must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). CUE is a collateral attack on an otherwise final rating decision by the AOJ. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran initially contended that there was CUE in the assignment of the effective dates for the grants of service connection for the left and right foot disabilities (frostbite residuals and associated neuropathy) and sleep apnea because he provided VA with a disabilities/conditions worksheet listing an in-service cold injury to both feet/frostbite and sleeping issues with his original compensation claim filed as part of the benefits delivery at discharge program (BDD). He essentially indicated that VA erred because it did not provide a VA examination for him for those disorders as part of his BDD claim. See July 2015 CUE motion; September 2015 NOD. The AOJ informed the Veteran in the adjudication documents for this appeal that it had not received the worksheet as part of his original claim, and the record does not reflect that he filed a copy of the worksheet prior to the effective dates assigned for the disabilities. The Veteran subsequently acknowledged that, after further research, he could understand why VA may never have received the worksheet that he thought was submitted with his initial claim, and he asked VA to consider other factors in relation to his appeal. See June 10, 2016, written statement accepted as substantive appeal in lieu of VA Form 9 for bilateral foot disabilities. As such, further discussion regarding VA’s receipt or non-receipt of the worksheet as a basis for the CUE motion is not necessary. Moreover, a failure by VA to fulfill the duty to assist (here, providing a VA examination) would not constitute CUE. See, e.g., Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). The Veteran has requested VA consider his additional contention that the evidence of record showing that he requested a sleep study through his VA Medical Center (VAMC) within a year of his discharge from service shows his intent to file a service connection claim for sleep apnea. See September 2015 NOD attachments. He has also contended that the AOJ’s failure to process an October 2010 written submission as a claim for his now service-connected bilateral foot disabilities (other than plantar fasciitis) was CUE, inasmuch as it was a pending claim that would have provided a basis for an earlier effective date for those disabilities. See, e.g., October 2015 written statement; June 10, 2016, substantive appeal. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. In the January 2014 rating decision, the AOJ granted service connection for left and right foot frostbite residuals and associated neuropathy, assigning separate compensable evaluations effective from February 26, 2013. In the April 2014 decision, the Board granted service connection for sleep apnea. In the June 2014 rating decision, the AOJ effectuated the Board’s decision, assigning an effective date of December 31, 2008. In the rating decisions, the AOJ indicated that the effective dates assigned were based on the date of receipt of the claims (both dates being more than one year after the Veteran’s separation from service). VA law applicable at the time of the January 2014 and June 2014 rating decisions stated that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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) (2012). The effective date for an award of 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 is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2) (2014). A specific claim in the form prescribed by VA must be filed in order 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). 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 laws administered by VA from a claimant 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. 38 C.F.R. § 3.155(a). 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). A “pending claim” is defined as an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). Regarding the sleep apnea claim, the Board has considered the Veteran’s contention that his request for a sleep study through his VAMC within the year of his separation from service shows his intent to file a service connection claim prior to the December 2008 claim on which the AOJ based the currently assigned effective date. A November 2007 VA treatment record shows that the Veteran reported for a new patient visit, with his spouse reporting that he snored at night. VA treatment records from July 2008 and September 2008 show that he requested and was provided a sleep study diagnosing the disorder. These records were in the claims file at the time of the June 2014 rating decision, but they are dated beyond the one-year period after the Veteran’s separation from service. Although the date of a VA or service department hospitalization or examination may be accepted as an informal claim in some instances under 38 C.F.R. § 3.157(b), that regulation is not applicable to the VA treatment records in this case. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service-connected); Crawford v. Brown, 5 Vet. App. 33 (1993). Accordingly, the provisions of 38 C.F.R. § 3.157(b) do not apply in this case. Moreover, the Veteran’s May 2006 original compensation claim (VA Form 21-526) lists disabilities other than sleep apnea or other sleep problems (hemorrhoids, a right shoulder injury, plantar fasciitis, and status post growth removal near the eyes), and he listed that he was applying for four disabilities in the BDD attachment to the VA Form 21-526, consistent with the application itself. The record shows that the next service connection claim that he made was the December 31, 2008, claim. The United States Court of Appeals for Veterans Claims had previously held that the intent to file a claim must be clear; “statements expressing a wish or desire to obtain [VA benefits] recorded in medical reports by VA physicians” do not constitute an informal claim. King v. Shinseki, 23 Vet. App. 464, 469 (2010). See also, e.g., Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”) and Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In other words, the AOJ’s determination was consistent with the evidence of record and the law at the time of its decision. Regarding the left and right foot frostbite residuals and associated neuropathy, the Board has considered the Veteran’s contention that the AOJ erred in not considering the October 2010 written submission as a claim for those disabilities. The October 2010 written submission was a substantive appeal (VA Form 9) for the appeal separately adjudicated by the Board, including a claim for a higher evaluation for separately service-connected left and right foot plantar fasciitis. See January 2007 rating decision (granting service connection for plantar fasciitis based on May 2006 original claim); August 2009 rating decision (appealed decision based on December 2008 claims for increase for those disabilities). In the VA Form 9, the Veteran discussed his frostbite and nerve damage in connection with his request for a higher evaluation for his plantar fasciitis; he also submitted a non-VA medical opinion in which the treatment provider related his in-service frostbite to current foot pain. Parenthetically, the Board notes that the compensable plantar fasciitis evaluations that have been effective since the day following the Veteran’s separation from service are based on pain in the feet and use of foot supports in his shoes, among other things. In the December 2011 supplemental statement of the case (SSOC) for that appeal, the AOJ acknowledged the information the Veteran provided in the October 2010 submission as to frostbite and notified him that, if his intention was to claim that his frostbite injury was due to service, he must submit a claim in writing. Thereafter, the record shows that the Veteran first filed a claim for residuals of cold weather injury (frostbite) on February 26, 2013, which is the effective date currently assigned for the disabilities. In that written statement, the Veteran indicated that he sustained an in-service cold weather injury to his feet in 1988, and that he was “filing now after all of these years [. . .] 25 years later to be exact.” In other words, the AOJ had previously recognized the Veteran’s report of frostbite in connection with his separate increased evaluation claims; however, it acted on that submission by notifying him that he had to file a claim for that benefit if that was his intention, which he did not do until in February 2013. His own statement in February 2013 indicated he was “filing now.” As such, the AOJ’s determination as to the assignment of the effective date for those disabilities was consistent with the evidence of record at the time of its decision, including the absence of a pending claim. The Board also notes that, while not dispositive, the Veteran has routinely been an active participant in providing information in support of his appeals. See, e.g., December 2011 written statement in response to December 2011 SSOC. In summary, the Board finds that the Veteran has not alleged an error of fact or law in the January 2014 rating decision or June 2014 rating decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The AOJ correctly applied the law in effect at that time to determine the effective dates for the grants of service connection for the disabilities. Based on the foregoing, the Board concludes that there was no CUE in the January 2014 and June 2014 rating decisions. The benefit-of-the-doubt rule is inapplicable to CUE claims, and they must therefore be denied. Russell, 3 Vet. App. at 14. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel