Citation Nr: 1815995 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 13-18 305A ) DATE ) ) THE ISSUE Whether the November 6, 2002 Board of Veteran's Appeals (Board) decision denying an effective date prior to June 21, 1994 for the grant of service connection for spondylolysis at L5-S1 should be revised or reversed on the grounds of clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Disabled American Veterans APPEARANCE AT ORAL ARGUMENT J.Y., Veterans Service Officer ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1973 to December 1973. This matter is before the Board as an original action on the May 2012 motion of the Veteran in which he alleges CUE in a November 6, 2002 decision of the Board. Oral argument was presented before the undersigned in July 2016. FINDINGS OF FACT 1. In a final decision dated November 6, 2002, the Board denied an effective date prior to June 21, 1994 for the grant of service connection for spondylolysis at L5-S1. 2. The correct facts, as known at the time, were before the Board in the November 6, 2002 decision and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The November 6, 2002, Board decision denying and effective date earlier than June 21, 1994 for the grant of service connection for spondylolysis at L5-S1 was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to revise the November 6, 2002 Board decision denying an effective date earlier than June 21, 1994 for the grant of service connection for spondylolysis at L5-S1 on the basis of CUE. By way of background, the Veteran sought service connection for whiplash of the neck causing headaches and dizziness in February 1975. He reported that his injuries arose from a June 1973 bus accident. During an October 1975 VA examination, X-rays of the lumbar spine showed injury to his cervical spine, as well as a defect of the pars interarticulares at L5. The radiology report noted no evidence of spondylolisthesis of L5 on S1. It was also noted that the lumbar vertebrae were otherwise normal in appearance, with well-maintained intervertebral spaces and no significant abnormality of the sacroiliac joints. The diagnosis was congenital defect of L5. In a December 1975 decision, the RO granted the Veteran's claim for a cervical spine disability, but denied service connection for a low back disorder on the basis that the defect at L5 was a constitutional or developmental abnormality and not a disability under the law. By letter sent in December 1975, the RO notified the Veteran of the decision and his appellate rights. He did not appeal this determination. The Veteran acknowledges that he received notice of the December 1975 decision, but states that he did not appeal because he could not obtain the medical records he believed necessary to support his claim. See April 2002 Hr'g Tr. at 11; July 2016 Oral Argument Tr. at 4-5. In October 1993, the RO received the Veteran's application for an increased rating for his cervical spine disability and for service connection for a low back disorder. The RO scheduled him for a VA examination to take place in December 1993, but he did not report. In a May 1994 decision, the RO denied the claim for an increased rating and determined that new and material evidence had not been received to reopen the Veteran's claim of service connection for a low back disorder. By letter dated on June 16, 1994, the RO notified the Veteran of the decision and his appellate rights at his then current address of record. He did not appeal this decision. On September 16, 1994, the RO received a communication from the Veteran's representative requesting that "his claim be reopened for an increased evaluation of his service-connected conditions." The correspondence further requested that the RO "obtain the medical records of [the Veteran] in order to substantiate [his] claim for increased evaluation." In a September 1994 rating decision, the Veteran's claim for an increased evaluation for his service-connected cervical strain was denied. He received notification of this denial in October 1994 and submitted a Notice of Disagreement (NOD) the same month. In the October 1994 NOD, the representative noted that the issue was entitlement to an increased evaluation for service-connected cervical strain and noted that the Veteran had chronic neck pain with evidence of neurological deficits, including radiculopathy and functional limitations. The Veteran also submitted a statement indicating that he could not work due to his cervical spine disability. There was no mention of a low back disability in these communications, nor was there an indication that the Veteran was seeking to reopen his claim. The Veteran was provided a VA examination in connection with his cervical spine disability in November 1994 during which he complained of chronic neck and back pain with occasional numbness and loss of temperature sensation in the left leg. Another VA examination was performed in March 1995. X-ray of the lumbosacral spine completed as part of that examination showed spondylosis at L5-S1. In a September 1995 decision, the RO increased the Veteran's rating for his cervical spine disability. Even though the issue had not been specifically raised by the Veteran, the RO addressed the issue of reopening the previously denied claim of entitlement to service connection for a low back disability. The RO found that the Veteran's claim for service connection for a low back disorder had previously been denied because he had a congenital defect at L5, and that that disorder was not a disability for VA purposes. The RO stated that in order to reopen his claim, the Veteran needed to submit new and material evidence that was sufficient to raise a reasonable possibility of changing the outcome of the decision. The RO concluded that the evidence submitted was cumulative, and therefore denied reopening. In a July 1996 NOD, the Veteran expressed his disagreement with the September 1995 rating decision "denial of service connection for [a] low back [condition]." His appeal was perfected to the Board. In a November 1998 decision, the Board found that the December 1975 denying the Veteran's claim originally and the May 1994 RO decision denying the Veteran's application to reopen had become final. The Board also found that new and material evidence had been received to reopen the Veteran's claim of service connection for a low back disorder. In reaching its determination the Board noted that the evidence added to the record since the May 1994 rating decision included private medical records and reports, dated from October 1996 to June 1997; VA outpatient treatment records, dated from June 1994 to June 1997; VA examination reports dated in November 1994, March 1995, and March 1996; a July 1995 VA hospitalization report; the transcript of the hearing testimony of the Veteran and his fiancée at a hearing held before a hearing officer at the RO in January 1997; and statements of the Veteran. The Board noted that of particular significance, in an October 1996 report, the Veteran's private neurologist diagnosed him as having spondylolysis at L5-S1, bilaterally, and noted that this disability was documented as early as November 23, 1973. The neurologist opined that the Veteran's low back disorder was etiologically related to the June 1973 in-service motor vehicle accident, and that the disorder had been persistent and problematic since that date. Based on this, the Board reopened and remanded the case to the RO for additional development and readjudication on the merits. In a September 1999 VA examination, the VA examiner reviewed various VA x-ray and imaging studies of the Veteran's lumbar spine conducted in 1993, 1995 and 1997. The VA examiner found inconsistent evidence of spondylolysis at L5 and opined that the spondylolysis was not a congenital abnormality but, in the Veteran's case, an acquired defect. The VA examiner further opined that the spondylolysis was a substantial contributor to the Veteran's current low back symptoms. Based on this opinion, the RO granted service connection for spondylolysis at L5-S1. An effective date of October 5, 1994 was assigned, which was the date the Veteran's NOD was received. In August 2000, the RO received a statement from the Veteran indicating his disagreement with the effective date assigned and seeking an effective date of 1975, the date the initial claim for service connection was received by VA. He asserted that he was entitled to an earlier effective date because his low back was injured in the bus accident in 1973 and he did not have a congenital or developmental defect. In September and October 2000, the RO received additional evidence consisting of medical records dating back to June 1973 and showing x-ray evidence of spondylolysis at L5 and complaints of low back pain after the in-service bus accident, treatment for low back pain after a work injury in July 1988, and x-ray evidence of spondylolysis at L5 in 1995 and 1997. At a February 2001 hearing at the RO before a local hearing officer, the Veteran testified that the effective date of service connection for spondylolysis at L5-S1 should be retroactive to 1975, when the RO initially denied service connection for a low back disorder. He said that he was unable to pursue an appeal of that decision because he could not obtain his service medical records or treatment reports, and that he was unable to prove his case due to the inability to obtain records. In February 2001, the RO received additional evidence in support of the Veteran's claim, which consisted of duplicative service and private records dated from 1973, service department records, an emergency department record dated in July 1988 regarding complaints of low back pain, a copy of a newspaper account of the Veteran's in-service bus accident, and records dated in 1974, 1994 and 1996 documenting the Veteran's efforts to obtain service treatment records. In a May 2001 decision, the RO assigned an effective date of June 21, 1994 for the grant of service connection for spondylolysis at L5-S1, based on CUE in the prior decision. The RO stated that the October 5, 1994 NOD was in fact submitted in regard to another claim, and that the proper effective date should be the earliest date that the disability was shown if the claim was received within one year from that date. The Veteran appealed this determination. In a November 6, 2002 decision, the Board denied an effective date prior to June 21, 1994. The Board reiterated that the December 1975 rating decision and the May 1994 rating decision had both become final, as originally found by the Board in November 1998. The Board further found that the next document of record that could be construed as an application to reopen the Veteran's claim of service connection for a low back disorder was received in September 1994, later than the effective date assigned by the RO. Thus, as there was no basis in law to assign an effective date earlier than June 21, 1994, the Veteran's appeal was denied. Nothing in the record indicates the Veteran appealed the Board's 2002 decision. Accordingly, the November 6, 2002 decision is final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. The Veteran's Contentions The Veteran contends that the proper effective date in this matter is February 1974, the date his initial claim for service connection was received by VA. He asserts that the effective date of service connection for spondylolysis at L5-S1 should be retroactive because he could not obtain his service medical records or treatment reports at the time his claim was initially denied in 1975, and that he was unable to prove his case due to inability to obtain records. See July 2016 Oral Argument; see also February 2001 Hr'g Tr.; April 2002 Hr'g Tr. Alternatively, he asserts that an effective date of July 1988 is appropriate because the Veteran was receiving treatment for his lumbar spine condition at a non-VA provider at that time because he was unable to received treatment from VA due to having his social security number mistakenly assigned to another person. See July 2016 Oral Argument. Relevant Law Under 38 U.S.C. § 7111, a prior Board decision may be reversed or revised on the grounds of CUE. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404(b). The determination of whether a prior Board decision was based on CUE must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b)(1). 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a); see Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Stallworth, 20 Vet. App. at 487. Finally, the error must have "manifestly changed the outcome" of the decision being attacked at the time that decision was rendered, such that if there were no CUE the benefit would have been granted rather than denied. Id.; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See 38 C.F.R. § 20.1404(b); see also Canady v. Nicholson, 20 Vet. App. 393, 401-02 (2006). Thus, the Board will proceed to the merits of the Veteran's motion. Analysis The Board finds no CUE in the November 6, 2002 Board decision denying an effective date earlier than June 21, 1994 for the grant of service connection for spondylolysis at L5-S1. At the time the November 2002 Board decision was issued, the applicable law provided that when a claim is reopened based upon new and material evidence received after a final disallowance, the effective date of service connection will be the date of VA receipt of the claim to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). The Board correctly noted in November 2002 that the December 1975 rating decision denying a claim of service connection for a low back disorder became final after the Veteran was notified of the decision and his appellate rights, but did not appeal. See 38 U.S.C. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 20.200, 20.302(a) and (b), 20.1103. The Veteran acknowledges that he received notice of the December 1975 rating decision and did not appeal. The Board was also correct that the May 1994 rating decision denying the Veteran's October 1993 application to reopen became final because, again, the RO notified the Veteran of the decision and his appellate rights in a June 1994 letter, but he did not appeal. See id. In the November 2002 decision, the Board found that after the RO's last final disallowance of the claim in May 1994, the next application to reopen the claim for service connection for a low back disorder was received from the Veteran on September 16, 1994. A review of the record shows that the document received on this date was not actually a claim or application to reopen the claim for service connection for a low back disorder, but rather, a claim for an increased rating for the Veteran's service-connected cervical spine disability. This factual error, however, does not constitute CUE because the error is not the type that if it had not been made would have manifestly changed the outcome of the decision. The Veteran was assigned an effective date of June 21, 1994 for the grant of service connection for his low back disability. Any application or claim to reopen his previously denied low back claim was received by VA after this date. The evidence does not show that VA received any communication wherein he requested that his claim be reopened between May 1994 (the date of the rating decision denying his claim to reopen) and June 21, 1994 (the current effective date assigned). Thus, an effective date earlier than June 21, 1994 cannot be assigned. Although the Board acknowledges that additional evidence was received within one year after the May 1994 rating decision, the receipt of this evidence does not vitiate finality in this instance. The applicable regulation 38 C.F.R. § 3.156(b) in effect in November 2002 provided that new and material evidence received by VA prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Section 3.156(a) defined new and material evidence as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2002). Here, the evidence that was received within one year of the promulgation of the May 1994 rating decision was not new and material because it was redundant or cumulative of the evidence of record. The evidence received by VA during this one year period included: VA outpatient treatment records dated from June 1994 to June 1995, VA examination reports dated in November 1994 and March 1995, and statements of the Veteran. As relevant to the Veteran's low back disorder, the records and statements included the Veteran's reports of having continued low back pain or pain radiating into his low back since the 1973 motor vehicle accident and a diagnosis of spondylolysis bilaterally at L5-S1; however, this evidence is cumulative of the evidence that was already of record and considered by the RO in connection with the May 1994 rating decision. The VA treatment records from 1993 also noted the Veteran's complaints of low back pain since service and a diagnosis of spondylolysis bilaterally at L5-S1. See January 1993 VA Orthopedic Clinic Record. Thus, the information received by VA within one year of the June 1994 notification was not new within the meaning of 3.156(a) and did not prevent the May 1994 rating decision from becoming final. Moreover, the Board did not commit CUE in the November 2002 decision by not assigning an earlier effective date under 38 C.F.R. § 3.157. The Veteran asserts, in part, that the effective date of service connection should be July 1988, arguing that his non-VA medical records constituted an informal claim for benefits. He notes that he was receiving treatment for his low back disorder from a non-VA provider at that time because he was unable to receive treatment from VA due to having his social security number mistakenly assigned to another person. See July 2016 Oral Argument. Thus, he contends that the non-VA treatment records should act as an informal claim pursuant to 38 C.F.R. § 3.157. See id. According to 38 C.F.R. § 3.157(b), in effect for claims filed prior to March 24, 2015, a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of § 3.157(b). Section 3.157(b) provided that receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits or an informal claim to reopen "[o]nce a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157(b) (2002). This provision does not apply in this case because service connection was not established for a low back disability, nor was a claim disallowed for the reason that the service-connected disability was not compensable in degree. Cf. MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006) (holding that VA medical records did not constitute an informal claim for benefits pursuant to § 3.157 because service-connection was not in effect for the disability at issue); cf. Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993) (holding that § 3.157 did not apply because there had not been a prior allowance or disallowance of a formal claim for compensation or pension). Even assuming that this provision did apply, the Board correctly found in its November 2002 decision that the May 1994 rating decision became final, and thus any then-pending claim to reopen was finally decided in that decision. Finally, although not discussed in the November 2002 Board decision, VA's receipt of additional service records in February 2001 did not allow for the assignment of an effective date earlier than June 21, 1994 based on the law existing at that time. As noted above, the Veteran contends that he was unable to appeal the denial of service connection in December 1975 because he could not obtain copies of his service records. See July 2016 Oral Argument; see also February 2001 Hr'g Tr.; April 2002 Hr'g Tr. In 2001, additional service records were received by VA in connection with the Veteran's claims, but after service connection for spondylolysis at L5-S1 had already been established. In November 2002, 38 C.F.R. § 3.156(c) provided that when new and material evidence consists of a supplemental report from the service department received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. 38 C.F.R. § 3.156(c) (2002). Moreover, section 3.400(q)(2) provided that when a claim is granted on the basis of new and material evidence consisting of service department records, the effective date of the award of compensation related back to the date of receipt of claim on which the prior evaluation was made, because it was presumed that these records were lost or mislaid. 38 C.F.R. § 3.400(q)(2) (2002); see Sears v. Principi, 349 F.3d 1326, 1331 (Fed. Cir. 2003) (finding, pursuant to § 3.400(q)(2), benefits for "a claim that is reopened for new and material evidence in the form of missing service medical records dates back to the filing of the veteran's original claim for benefits"); see also Nelson v. Principi, 18 Vet. App. 407, 409 (2004) ("although a claimant may, through the presentation of new and material evidence, reopen a particular previously-and-finally-denied claim and have the matter readjudicated, that action does nothing to affect the effective date of the award (unless, as is not here the case, the new evidence is from service medical records)"); Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994) (stating that any award of benefits made upon a claim reopened on other than service department reports will have an effective date no earlier than the date of the filing of the claim to reopen; however, where the claim is reopened on the basis of new and material evidence from service department reports, "the VA has consistently treated it as a true 'reopening' of the original claim and a review of the former disposition in light of the service department reports which were considered to have been lost or mislaid, and the award of benefits is made retroactive to the date of the original claim"). Here, the Board reopened the Veteran's claim in its November 25, 1998 decision based on an October 1996 neurological opinion and July and August 1995 outpatient treatment records that, collectively, suggested that the Veteran had been diagnosed as having a chronic low back disorder that may be related to the documented in-service motor vehicle accident. Significantly, no new service records were received by VA between December 1975 and November 25, 1998, the date the Board reopened the Veteran's service-connection claim that is at issue here. Thus, based on the law as it was in November 2002, an effective date earlier than the date of receipt of the claim to reopen was not warranted. For these reasons, the Board finds no CUE in the November 6, 2002 Board decision denying an effective date earlier than June 21, 1994 for the grant of service connection for spondylolysis at L5-S1. ORDER The motion to revise or reverse the November 6, 2002 Board decision that denied an effective date earlier than June 21, 1994 for the grant of service connection for spondylolysis at L5-S1 is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs