Citation Nr: 18160890 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-47 352 DATE: December 28, 2018 ORDER Entitlement to service connection for occipital scalp scar is granted. The motion for entitlement to an effective date prior to June 3, 1993 for the award of service connection for posttraumatic stress disorder (PTSD) based on clear and unmistakable error (CUE) is dismissed without prejudice to refiling. FINDINGS OF FACT 1. The evidence is evenly balanced as to whether the Veteran’s current occipital scalp scar is related to service. 2. The Veteran has not alleged an error of fact or law in the rating decision that assigned an effective date of June 3, 1993 for the grant of service connection for PTSD that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for occipital scalp scar have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The pleading requirements for a motion for revision of a rating decision regarding the effective date assigned to the grant of service connection for PTSD based on clear and unmistakable error have not been met and therefore the motion must be dismissed without prejudice to refiling. 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran is determined to have served in combat, and an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims entitlement to service connection for residuals of a shrapnel wound to the back portion of his head. He contends that a small piece of shrapnel became lodged under his skin while service in Vietnam. See August 2014 statement; September 2016 VA Form 9. Although service treatment records are negative for complaints or treatment for a shrapnel wound to the head and a March 1970 separation examination shows normal clinical evaluation of the head and scalp, the Veteran’s DD-214 and DD-215 show that he served in Vietnam and received, among other awards, a Combat Action Ribbon. Accordingly, the Veteran is considered a combat Veteran and the evidentiary burden to establish in-service incurrence of the injury must be relaxed. See 38 U.S.C. § 1154(b). In support of his claim, the Veteran has submitted a number of private treatment records. Notably, a June 2012 private treatment record shows that he reported to a plastic surgeon that there was metal falling out of a scar in his head and requested that it be removed. It was noted that retained shrapnel in a scalp scar was suspected. The record shows that there was a 4.0+ centimeter lesion on the posterior scalp. The area was prepped and anesthetized, the lesion was resected, then repaired with sutures, and the specimen was sent for histology. The assessment was scar scalp with alopecia and palpable foreign body. The claims file is negative for any records documenting the results of the histology. Based on the above, the Board finds that the evidence is evenly balanced as to whether the Veteran’s current occipital scalp scar is related to service. In light of the Veteran’s combat service, the Board finds that he could have been exposed to shrapnel and the private treatment record indicates that there was a palpable foreign body in the occipital portion of his scalp. While the Board acknowledges that the provisions of section 1154(b) do not provide a substitute for medical-nexus evidence, here, because the foreign body was removed and there is no record of the results of testing of the specimen, it is unlikely that remanding to obtain a medical nexus opinion would clarify the matter. As such, the Board finds that the evidence is approximately evenly balanced as to whether the occipital scalp foreign body, and the resulting occipital scalp scar, were incurred in service. The Veteran is therefore entitled to the benefit of the doubt and service connection for occipital scalp scar is warranted. 38 U.S.C. § 5107. CUE Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection and degree of disability, will be accepted as correct in the absence of CUE. In order for a CUE claim to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). CUE is one 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). When attempting to raise a CUE claim, a claimant must describe the alleged error with some degree of specificity, and, unless it is the kind of error, that if true, would be CUE on its face, must provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Id. at 43-44. Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE. Id. at 44. The party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error. Berger v. Brown, 10 Vet. App. 166, 169 (1997). This burden is not satisfied by the mere assertion that the decision contained CUE; instead, the party must describe the alleged error “with some degree of specificity” and must provide persuasive reasons “as to why the result would have been manifestly different but for the alleged error.” Fugo at 44; Pierce v. Principi, 240 F.3d 1348 (2001). By way of background, this appeal came to the Board when, after an October 2014 rating decision denied entitlement to an earlier effective date for service connection for PTSD due to CUE, the Board noted that the Veteran had timely appealed the rating decision and in a June 2015 Board remand, directed the RO to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). In a December 2015 remand, after observing that the RO had still not issued a statement of the case, the Board again remanded the appeal for issuance of a statement of the case. Thereafter, the Veteran timely perfected the appeal. The October 2014 rating decision states that the decision was issued because a special review of the Veteran’s file was mandated on June 12, 2013. The record indicates that on June 12, 2013, the Veteran phoned VA requesting to “reopen a claim” for, inter alia, “Clear and unmistakable error for PTSD on 1986 board [sic].” No further argument addressing the CUE claim appears in the report of general information. In a November 2014 notice of disagreement, the Veteran appealed the October 2014 rating decision, providing the following argument: I disagree with decision for PTSD – from (1986 to 1993) C.U.E…you did not take into account of information from (1968) decision, the laws did not pertain to me at the time when the decision for PTSD was decided in 1979-1999 when I was pay. I was pay from (1993-1999) at the time. In March 2015, the Veteran added that he disagreed because: 1. I could not get anyone to represent me when I open these 2 claims. 2. I do not believe the VA as to my CUE. 3. I was told by pro bono that I did have a CUE. 4. I am not a lawyer, layman, so you figure it out. In a September 2016 VA Form 9, the Veteran stated, “I believe there is a CUE in my case because pro bono lawyer told me all the time it was in the court. I don’t know if this is a (misrepresentation) or not.” The Veteran’s representative submitted a statement in lieu of a VA Form 646 in October 2016 and an appellate brief in June 2018, but advanced no specific arguments other than to state that the Veteran has been continuously applying for a mental health condition since the 1980s and feels that he met the requirements for service connection earlier than he was granted. The record contains no other arguments as to why entitlement to an effective date prior to June 3, 1993 for the award of service connection for PTSD based on CUE is warranted. Based on the above, the Board finds that the Veteran has not adequately plead a motion for revision of a rating decision based on clear and unmistakable error. Initially, the Board notes that the Veteran has not identified the decision where CUE was allegedly committed. His initial statements suggest that he intends to collaterally attack either a 1986 Board decision, decisions issued between 1986 and 1993, a 1968 decision, or decisions from 1979 to 1999. Tellingly, in determining that entitlement to an earlier effective date based on CUE was not warranted, the October 2014 rating decision did not identify any specific rating decision. Moreover, the Veteran’s arguments pertaining to the nature of the error itself are nonspecific. They consist of general allegations that VA did not adequately consider evidence or apply the law or that he has been told by a pro bono lawyer that CUE was committed at some point. His representatives have offered no clarification in this regard. (Continued on the next page)   In sum, the Veteran has not alleged an error of fact or law in the rating decision that assigned an effective date of June 3, 1993 for the grant of service connection for PTSD that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. “Broad-brush” allegations of “failure to follow the regulations” or “failure to give due process” are also insufficient. Fugo, 6 Vet. App. at 44. Accordingly, the Board must dismiss the Veteran’s motion for revision without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel