Citation Nr: 1824976 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 04-13 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for ulcers. 2. Entitlement to service connection for papular urticaria with lymphohistiocystic symptomatology, to include as secondary to in-service herbicide exposure. 3. Entitlement to higher disability ratings for a skin disorder, currently rated as 50 percent disabling for the period from February 15, 2001, to August 29, 2002, and as 60 percent disabling since August 30, 2002. 4. Entitlement to a compensable disability rating for scar residuals of a shell fragment wound of the left forearm. 5. Entitlement to an effective date earlier than February 15, 2001, for the grant of service connection for a skin disorder. 6. Whether a December 1970 rating decision that denied service connection for a skin disorder should be revised or reversed on the basis of clear and unmistakable error (CUE). WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, and his decorations include the Purple Heart Medal. This matter was last before the Board of Veterans' Appeals (Board) in February 2017, on appeal from January 2003, June 2003, and October 2004 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded for additional development. The Veteran was afforded a hearing before the below-signed Veterans Law Judge in September 2014 and the transcript of that proceeding is currently of record. In December 2014, the Veteran moved to correct the transcript of the September 2014 Board hearing, but, in April 2015, the Board denied the motion, determining that the transcript was an accurate reflection of the hearing as recorded in September 2014. Subsequently, the Veteran submitted a second motion (in February 2016) to correct the hearing transcript, but that motion is hereby denied as the Board has already determined that that the current transcript of the September 2014 Board hearing is an accurate reflection of the hearing. The Board notes that the Veteran twice requested a copy of his claims folder - in January 2016, the Board provided a CD-ROM copy and, in October 2016, the Board provided a hard copy. The Board also notes that, in February 2016, the Veteran expressed concern that his claims folder contained a copy of some documents pertaining to another Veteran. The Board hereby advises the Veteran that concern has been raised to the Board's Privacy Officer for appropriate remedial action. FINDINGS OF FACT 1. The weight of the evidence is against a finding that ulcers manifested during the Veteran's period of active service or are otherwise due to his active service. 2. The weight of the evidence is against a finding that papular urticaria with lymphohistiocystic symptomatology manifested during the Veteran's period of active service, within a year of separation from active service, or is otherwise due to active service, to include herbicide exposure. 3. The Veteran is in receipt of the maximum assignable ratings for dermatitis/eczema for the period prior to August 30, 2002, and for the period from August 30, 2002. 4. The Veteran's scar, residuals of a shell fragment wound of the left forearm, is not painful or tender, and is not productive of any limitation of motion. 5. Entitlement to service connection for tinea versicolor, back, was denied by the RO in a December 1970 rating decision. The Veteran was notified of the decision on January 13, 1971, but he did not file a notice of disagreement, and new and material evidence was not received within the one year period of the notice letter. 6. The December 1970 rating decision, which denied entitlement to service connection for tinea versicolor, back, was consistent with and reasonably supported by the evidence then of record, and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome of that decision. 7. The Veteran filed a claim of service connection for a skin disability on February 15, 2001; the claim was granted in a January 2003 rating decision pursuant to 38 U.S.C. § 1151 , effective February 15, 2001, corresponding to the date of receipt of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ulcers have not been met. 38 U.S.C. §§ 101(22)-(24), 1110, 5107 (2012); 38 C.F.R. §§ 3.6(a)-(d), 3.102, 3.303 (2017). 2. The criteria for service connection for papular urticaria with lymphohistiocystic symptomatology have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2017). 3. For the period from February 15, 2001 to August 29, 2002, the criteria for entitlement to a disability rating in excess of 50 percent (the maximum assignable rating) for a skin disability have not been met. 38 C.F.R. §§ 3.655, 4.118, Diagnostic Code 7806 (2001). 4. For the period from August 30, 2002, the criteria for entitlement to a disability rating in excess of 60 percent for a skin disability have not been met. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). 5. The criteria for entitlement to a compensable disability evaluation for scar, residuals of a shell fragment wound of the left forearm, have not been met. 38 C.F.R. 4.118, Diagnostic Codes 7804, 7805 (2008). 6. The December 1970 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 U.S.C. § 4005 (1970). 7. The December 1970 rating decision which denied service connection for tinea versicolor, back, was not clearly and unmistakably erroneous. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. § 3.105 (2017). 8. The criteria for an effective date earlier than February 15, 2001, for the grant of service connection for a skin disability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has been provided notice with regard to his initial service connection claims. The earlier effective date appeal arises from his disagreement with the effective dates assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, notice and duty-to-assist provisions are inapplicable in cases involving CUE of prior decisions. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Although the Veteran has alleged that, in regard to his hearing, VA has not met the duty to notify and assist, the Board determined in an April 2015 ruling and again, above, that his contentions of an errors in the hearing transcript were without merit. Review of the hearing transcript further reflects that the below-signed Veterans Law Judge conducted the hearing pursuant to applicable regulation, and took appropriate steps to maintain good order as prescribed by 38 C.F.R. § 20.706. The Veteran has contended that some medical records are missing from his claims folder, but the Board's review reflects that appropriate efforts were made to obtain pertinent evidence. Specifically, regarding the duty to assist, the evidence of record contains service treatment records, VA treatment records (to include for the period from 2001), private treatment records, and lay statements and testimony from the Veteran. Upon remand, attempts were made to obtain the Veteran's records from the Social Security Administration (SSA), but the SSA has indicated such records were destroyed. There is otherwise no indication of relevant, outstanding records that would support the claims discussed below. Notably, the Veteran failed to appear for VA examinations pertaining to his claimed papular urticaria and scar, shell fragment wound, and, to date, the Veteran has not provided a good cause explanation for his failure to appear or indicated that he would be willing to attend another VA examination. 38 C.F.R. § 3.655 (a). The consequence in this case of the Veteran's failure without good cause to report for the VA examination is that his papular urticaria and scar disability must be rated on the basis of the other relevant evidence of record. 38 C.F.R. § 3.655 (b). While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on review of the record, the Board determines that the agency of original jurisdiction (AOJ) substantially complied with prior remand directives such that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (aff'd, Dyment v. Principi, 287 F.3d 1377 (2002)). As the Veteran has not raised any additional (to the issues discussed immediately above) issues regarding the duties to notify and assist, the Board herein proceeds with adjudication of the appeal. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Ulcers A current diagnosis of ulcers has been established by the record: a January 1989 record reflects a two-year history of bleeding ulcer; a February 1993 record reflects a history of ulcer; the Veteran was admitted to a private hospital in July 1984 for upper gastrointestinal (GI) bleed, nausea, and ulcer; he submitted a December 1991 receipt for Pepcid; and correspondence dated in April 2017 from Dr. R.K., reflects that the Veteran was treated for ulcers periodically after a 1984 surgery for "bleeding ulcers" and was thereafter prescribed medication. However, the Veteran's service treatment records do not reflect any complaints, treatment, or diagnosis of ulcers: a November 1969 Report of Medical Examination reflects that his 'abdomen and viscera' were clinically evaluated as normal; on a November 1969 Report of Medical History, the Veteran checked the 'No' boxes for 'stomach, liver or intestinal trouble' and 'rupture/hernia;' and an August 1970 VA examination does not reflect an ulcer disability. The Board declines to obtain a medical nexus opinion with respect to the issue of entitlement to service connection, because there is no evidence of pertinent disability in service, and no evidence suggesting a relationship between his service and ulcers. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). Although for veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as ulcers, peptic (gastric or duodenal), will be considered to have been incurred in service if such manifested to a compensable degree within one year of separation from service (38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a), 3.309(a)), the medical evidence of record reflects that an ulcer disability was diagnosed approximately 15 years after separation from service. The Board has given consideration to the Veteran's assertions, as well as to 38 U.S.C. § 1154 (b), but the record simply does not reflect that the Veteran has the requisite medical expertise to find that his ulcers are due to service. His opinion in this regard is not competent, given the complexity of the medical question involved - the etiology of ulcers. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). In this case, the claim must be denied as the Board is unable to find a state of approximate balance of the evidence that would allow a favorable decision. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Papular urticaria with lymphohistiocystic symptomatology The Veteran asserts that he has papular urticaria due to herbicide exposure. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). The evidence of record reflects that the Veteran had active service in the Republic of Vietnam during the applicable period, thus it is presumed that he was exposed to herbicides during active service. Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). Pertinent here, these diseases include chloracne or other acneform disease consistent with chloracne, as well as porphyria cutanea tarda. 38 C.F.R. § 3.309 (e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010); see 78 Fed. Reg. 173, 54763-66 (September 6, 2013). However, while the Veteran has claimed a skin disability, he has not been diagnosed with chloracne and his papular urticaria is not among the diseases associated with exposure to herbicides. The Veteran has submitted a May 2017 statement from R.M.K., M.D., which reflects that the Veteran uses Triamcincone to treat his skin disability and that his condition has been "rated as porphyria cutanea tarda since 2003 per his VA records. However, review of the VA medical records on file reflect that the Veteran has contended that he has porphyria tarda, but VA clinicians have not supported that self-diagnosis. VA records from late 2006 reflect that the Veteran and his wife insisted on certain medications to treat porphyria tarda, but were informed there was no clinical evidence of blistering on the last physical examination. At that time, a VA clinician offered to do a biopsy to confirm the diagnosis, but both the Veteran and his spouse refused. The clinical impression was chronic dermatitis, suspect tinea corporus (tinea incogneto). As the medical evidence of record does not otherwise reflect a diagnosis of porphyria cutanea tarda, thus there is no basis for a finding that the Veteran has such presumptive disability. Although the Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted (see Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996)), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155, 160 (1997). Here, the Veteran does not assert that papular urticaria manifested during his period of active service. Rather, the Veteran asserts that he has papular urticaria due to exposure to herbicides. However, the Veteran has not submitted any medical evidence in support of this claim, he failed to appear at a scheduled VA examination for this claim (38 C.F.R. § 3.655), and he is not shown to have the requisite medical expertise to find that his papular urticaria is due to service or due to Agent Orange exposure. His opinion in this regard is not competent, given the complexity of the medical question involved, to include the etiology of the papular in question. See Kahana, 24 Vet. App. at 438. Despite the Board's consideration of 38 U.S.C. § 1154 (b), the Veteran's papular urticaria was not shown in service and the records contain no suggestion of a causal link between his papular urticaria and such service, to include his herbicide exposure. The preponderance of the evidence is against the claim of service connection and it must be denied. Increased ratings Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The skin appeal arises from the original assignment of disability evaluations following an award of service connection, thus the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the scar issue, as an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1 , 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. While the Veteran's appeal of the rating for his skin disorder was pending, VA revised the regulations and rating schedule for the evaluation of skin disorders, effective August 30, 2002. See 67 Fed. Reg. 49,590 et seq. (July 31, 2002) (codified at 38 C.F.R. § 4.118). The law "precludes an effective date earlier than the effective date of the liberalizing . . . regulation," but the Board must, nonetheless, still adjudicate whether a claimant "would receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Accordingly, the Board has the duty to adjudicate the Veteran's claims under the old regulation for any period prior to the effective date of the new diagnostic codes, as well as under the new diagnostic code for the period beginning on the effective date of the new provisions. Wanner v. Principi, 17 Vet. App. 4, 9 (2003). Inasmuch as the Veteran has been provided with both the old and the revised regulations, and the RO has rated the disability under both regulations, the Board will proceed in making a determination. Skin disorder The RO has rated the Veteran's skin disability under Diagnostic Code 7806 pertaining to dermatitis or eczema. An evaluation of his skin in June 2002 indicated that he had patchy eczematous dermatitis with large plaques all over his body although his face was clear and mucous membranes were not involved. The Veteran has subsequently received treatment for his skin condition and submitted photographs and lay evidence thereof. Under the old criteria, in effect prior to August 30, 2002, a 10 percent rating under Diagnostic Code 7806 is assigned for eczema with exfoliation, exudation, or itching, if involving an exposed surface or extensive area; and a 30 percent rating is assigned for eczema with constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent rating is warranted when there is ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Under the revised criteria, in effect from August 30, 2002, a 10 percent rating is warranted for dermatitis or eczema in which at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks during the last 12-month period. A 30 percent rating is assigned for dermatitis or eczema in which 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). The Board notes that the criteria for evaluating disabilities of the skin were again revised, effective October 23, 2008. The new rating criteria for evaluation of scars are applicable only to claims received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The Veteran's date of claim was in February 2001. As a result, the regulations under 38 C.F.R. § 4.118 prior to October 23, 2008, are in effect. The Board has reviewed the entirety of medical evidence of record and the Veteran's lay assertions. While consideration has been given to the entire evidence of record, the Veteran's skin disability is rated 50 percent disabling under the "old" criteria for the period prior to August 30, 2002, which constitutes the maximum assignable rating for dermatitis/eczema, which contemplates ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. Likewise, the Veteran's skin disability is rated 60 percent disabling under the "new" criteria for the period from August 30, 2002, which constitutes the maximum assignable rating for dermatitis/eczema, which contemplates the disability affecting more than 40 percent of the entire body or more than 40 percent of the exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. As the maximum assignable ratings are in effect, the Board has considered alternative criteria. For example, per Diagnostic Code7817 (2017), a 100 percent rating is warranted for exfoliative dermatitis (erythroderma) characterized by systemic manifestations (such as fever, weight loss, and hypoproteinemia) and constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultra-violet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12 month period. However, systemic manifestations due to the Veteran's skin disability are not shown by the medical record. Further, as there are no further diagnostic criteria which could provide bases for ratings in excess of the maximum ratings in effect for dermatitis/eczema, there is no basis for assignment of ratings in excess of the respective 50 percent and 60 percent ratings in effect. Scar residuals of a shell fragment wound of the left forearm Pursuant to Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination (a superficial scar is one not associated with underlying soft tissue damage). Diagnostic Code 7805 has not changed, providing that scars may be rated on limitation of function of the affected part. The Board notes that the criteria for evaluating disabilities of the skin were revised, effective October 23, 2008. The new rating criteria for evaluation of scars are applicable only to claims received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The Veteran's date of claim was in January 2003. As a result, the regulations under 38 C.F.R. § 4.118 prior to October 23, 2008, are in effect. By way of history, the Veteran sustained a glancing type shell fragment wound of the left forearm while serving in Vietnam. Service connection was established for scar, shell fragment wound, left forearm, superficial, asymptomatic. A June 2003 VA examination reflects that the examiner was unable to view the scar due to a super-imposed skin condition that had darkened much of his body including his left forearm where the shell fragment wound appeared to have been. The examiner could not say whether there was a scar or not, but noted that there was no subcutaneous shell fragment remaining. The examiner diagnosed history of superficial shell fragment wound scar of the left forearm. Subsequently, the Veteran failed to appear for a scheduled VA examination which could have provided further details regarding his scar. The Board has reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of a compensable evaluation for residuals of scar to the forearm. Upon review of the evidence of record, the Veteran has not voiced any complaints that the scar causes loss of motion or pain and there have been no objective findings of loss of motion, pain, or tenderness related to the scar. The Veteran has also not complained of any functional limitation or loss due to his scar. As a result, there is no basis for assignment of a compensable rating for this disability. 38 C.F.R. § 4.118. CUE In this case, the Veteran contends that there was clear and unmistakable error in the December 1970 rating decision originally denying service connection for tinea versicolor. Specifically, the Veteran asserted in October 2004 correspondence that the "incorrect evaluations" for the skin were used in making a determination. As history, on May 11, 1970, the Veteran filed a claim of service connection for a 'back ailment' and 'shrapnel wounds.' In August 1970, the Veteran underwent a VA examination wherein the examiner noted scattered tinea versicolor lesions on back. However, service treatment records do not reflect any complaints, treatment, or diagnoses related to the skin. A November 1969 Report of Medical Examination reflects that the 'skin, lymphatics' was clinically evaluated as normal. In a December 1970 rating decision, service connection was established for scar, shell fragment wound, left forearm, and service connection was denied for tinea versicolor, back, and scoliosis, thoracolumbar spine with possible defect in pars interarticulars of L5. The RO stated that there was no record of complaint or finding of a skin disease in service or noted at time of discharge examination, and observed that his then current examination of the skin revealed few scattered tinea versicolor lesions on back. Notice of that rating decision was issued to the Veteran on January 13, 1971. The Board notes that he later, in November 2001, filed a claim of service connection for a skin condition pursuant to 38 U.S.C. § 1151, which was granted in a January 2003 rating action. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE 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. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. The Board notes initially that while the Veteran filed a claim for compensation in May 1970, he did not specifically claim a skin condition at that time. He only claimed service connection for shrapnel wound and a back disability. Objective findings of tinea versicolor were reflected in the August 1970 VA examination, thus, the RO, on their own volition, reviewed the service treatment records on file taken with the VA examination on file and determined that the diagnosed tinea versicolor was not shown in service and service connection was not warranted. The Veteran's contentions essentially amount to an argument on how the RO weighed the evidence, rather than clear evidence that the RO did not properly consider the applicable regulations in adjudicating the claim. The Court has held that "simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 44; Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The medical evidence of record at the time the Veteran's tinea versicolor was denied consisted of a VA examination and service treatment records, which were considered by the RO in adjudicating whether service connection was warranted. The Veteran essentially disagrees with the objective findings of the RO, but there is no indication that the RO committed any error of fact or law that would have resulted in a manifestly different outcome for the Veteran's claim. The December 1970 RO decision was factually supportable by the record. Notwithstanding this, the basis for the eventual grant of service connection for a skin disability was pursuant to § 1151, not pursuant to § 3.303. To date, service connection has not been established for a skin disability directly due to service. Rather, service connection is in effect for a skin disability due to VA treatment per § 1151, and the Veteran's claim of service connection on a direct basis is addressed, above, in this decision. Earlier effective date As the claim of CUE is denied, the Board now reviews the Veteran's appeal to determine the possibility of an earlier effective date for his grant of service connection for his skin disability (pursuant to the provisions of § 1151). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). Any communication or action indicating an intent to apply for one or more benefits under the 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 the 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 claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. In essence, the following sequence is required: there must be a decision by the RO, the appellant must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the appellant, and finally the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. New and material evidence received prior to expiration of the appeal period, will be considered as having been filed in conjunction with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). Such evidence could have the effect of tolling the running of the appeal period until VA readjudicates the claim. Young v. Shinseki, 22 Vet. App. 461, 466 (2009) ("[w]hen VA fails to consider new and material evidence submitted within the one-year period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final"). VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b). Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Generally, where evidence is requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement, and is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Further, should the right to benefits be finally established, benefits based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158. As detailed above, the RO considered whether service connection was warranted for tinea versicolor, back, in a December 1970 rating decision. The Veteran did not file a notice of disagreement with the rating decision within the one-year prescribed period. The Board also notes that no new and material evidence was received within the one year period after the December 1970 issuance of the rating decision. Thus, the RO's rating decision is final. 38 U.S.C. § 7105. A claim of service connection for a skin disability was received on February 15, 2001, and the Veteran later clarified that he sought compensation pursuant to § 1151. The RO granted service connection for a skin disability, assigning an effective date of February 15, 2001, date of receipt of his claim. The Board finds that the effective date provisions do not allow an earlier effective date due to the finality of the December 1970 rating decision. Based on the above, the earliest date of receipt of the claim of service connection for a skin disability is February 15, 2001, the date the RO received the Veteran's claim for compensation. An effective date earlier than February 15, 2001, is not warranted as VA is not free to award a retroactive effective date prior to the date it receives a claim unless there is a specific statutory or regulatory authority for such retroactive effective date. Based on the facts in this case, there is no legal basis for an effective date prior to February 15, 2001, for the award of service connection for a skin disability. In reaching this decision, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not for application in this case because the preponderance of the evidence is against the assignment of earlier effective dates. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for ulcers is denied. Entitlement to service connection for papular urticaria with lymphohistiocystic symptomatology is denied. Entitlement to a compensable disability rating for scar residuals of a shell fragment wound of the left forearm is denied. Entitlement to a disability rating in excess of 50 percent for a skin disorder for the period from February 15, 2001 to August 29, 2002, is denied. Entitlement to a disability rating in excess of 60 percent for a skin disorder for the period from August 30, 2002, is denied. The December 1970 rating decision that denied service connection for a skin disorder did not contain CUE; the appeal is denied. Entitlement to an effective date earlier than February 15, 2001, for the grant of service connection for a skin disorder is denied. ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs