Citation Nr: 18100796 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-38 836 DATE: April 20, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to an effective date of July 23, 2009, for the award of service connection for hysterectomy scar, to include whether there was clear and unmistakable error (CUE) in a rating decision, is granted. FINDINGS OF FACT 1. The Veteran filed a claim for the residuals of a hysterectomy on June 19, 2007. Service connection for status post hysterectomy was granted and assigned a temporary 100 percent disability rating effective May 29, 2007, and 30 percent disabling effective September 1, 2007, in an unappealed February 2008 rating decision. May 29, 2007 is the date of the hysterectomy surgery. 2. On July 23, 2009, the Veteran filed a claim for an increased rating, stating that her hysterectomy had increased in severity and that she was entitled to a 50 percent rating. In an unappealed January 2010 rating decision, CUE was found in the February 2008 rating decision and a higher 50 percent disability rating was assigned effective September 1, 2007. 3. In an October 2009 VA examination, the Veteran reported that there was intermittent tenderness at her incision cite. 4. Notwithstanding the CUE identified in the January 2010 rating decision, the correct facts, as they were known at the time of the February 2008 rating decision, were before the adjudicators, the statutory or regulatory provisions extant at the time were correctly applied, and the Veteran has not alleged any specific error by the adjudicators that would have manifestly changed the outcome of the claim. 5. At the time of the January 2010 rating decision, the correct facts, as they were known at the time, were before the adjudicators. The October 2009 VA examination reflects a painful scar, which warrants a 10 percent rating under 38 C.F.R. 4.118, Diagnostic Code 7804. CONCLUSIONS OF LAW 1. The February 2008 rating decision that granted entitlement to service connection for status post hysterectomy is final. 38 U.S.C § 7105(c) (2012); 38 C.F.R §§ 3.104, 20.302(a), 20.1103 (2017). 2. Notwithstanding the January 2010 rating decision, there was no CUE in the February 2008 rating decision which granted entitlement to service connection for status post hysterectomy. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.1403 (2017). 3. The criteria for an effective date of July 23, 2009, for the award of service connection for hysterectomy scar, have been met. 38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p) (in effect prior to March 24, 2015), 3.104, 3.105, 3.151 (in effect prior to March 24, 2015), 3.160, 3.400, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to December 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs Regional Office (RO). The Board observes that following the last adjudication by the RO in the October 2014 statement of the case ( SOC ), additional records were received including VA medical records and VA examinations. The Board has reviewed these records and observes that they are not pertinent to the issue of entitlement to an earlier effective date for hysterectomy scar. 1. Earlier effective date The Veteran seeks an effective date earlier than May 10, 2011 for the award of service connection for hysterectomy scar. Specifically, the Veteran asserts CUE in the February 2008 rating decision on the basis that a VA scar examination should have been conducted in association with her original September 2007 VA examination. Accordingly, the Veteran asserts that the effective date should be consonant with the effective date assigned for her service-connected status post hysterectomy; May 29, 2007. See August 2012 Notice of Disagreement and October 2014 VA Form 9. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, 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 later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). That is, the effective date of an award “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). Prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (in effect prior to March 24, 2015); see also 38 C.F.R. § 3.1(p) (2017) (now providing that a “claim” must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). As this claim was filed before March 24, 2015, the old version of the regulations applies. It has been held that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. . . . It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, a claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The record shows that in June 2007, the Veteran filed an increased rating claim for her service-connected right ovarian cyst and noted that her ovaries and uterus had been removed. The Veteran underwent a September 2007 VA examination. At the time of the examination, her incision scar was noted to be benign. Thereafter, a February 2008 rating decision granted service connection for hysterectomy secondary to right ovarian cyst removal and assigned a temporary 100 percent disability rating effective May 29, 2007 (the date of her hysterectomy) and 30 percent effective September 1, 2007. The Veteran did not file a timely notice of disagreement (NOD) and the February 2008 rating decision became final. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017). On July 23, 2009, the Veteran filed an increased rating claim asserting a higher 50 percent disability rating. Additionally, in a September 2009 statement, the Veteran asserted CUE in the February 2008 rating decision on the basis that the incorrect diagnostic code was applied. During an October 2009 VA examination, the Veteran reported intermittent tenderness at the site of her incision. A January 2010 rating decision found clear and unmistakable error and assigned a 50 percent disability rating effective September 1, 2007. The Veteran did not file a timely NOD and the January 2010 rating decision became final. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017). In May 2011, the Veteran filed a service connection claim for hysterectomy scar. Following a August 2011 VA scar examination, a August 2012 rating decision granted service connection and assigned a 10 percent evaluation effective May 10, 2011. With regard to the Veteran’s CUE claim, the Board recognizes the Veteran’s assertion that she was not provided a scar examination as part of her September 2007 VA examination, and that if she had been provided with a scar examination she would have been assigned a separate rating for painful scar at the time. See August 2012 NOD and October 2014 VA Form 9. The crux of her claim is that VA breached its duty to assist by failing to provide her with a VA examination, and that this breach of duty constituted CUE. However, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. 38 C.F.R. § 20.1403(d)(2); Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994) (stating that VA’s breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. The only relevant evidence of record at the time of the February 2008 rating decision was that the scar was benign. Therefore, no compensable rating could have been assigned at the time of that rating decision. In light of the above, the Board finds that the February 2008 rating decision was not clearly and unmistakably erroneous and no revision is warranted. However, after she filed her claim for an increased rating in July 2009, the October 2009 VA examination reflected an intermittent tender scar at the incision site. Such finding warrants a 10 percent rating under 38 C.F.R. 4.118, DC 7804. The Board finds that this evidence was clearly of record at the time of the July 2009 claim for an increase, and it is undebatable that but for the error, a 10 percent rating would have been assigned. Accordingly, an effective date of July 23, 2009, but no earlier, for a single painful scar at a 10 percent rating, is granted. In sum, based upon the evidence existing at the time of the February 2008 rating decision, the Board finds that the correct facts, as they were known at that time, were before the adjudicator with no outcome determinative error made by the rating board. Thus, notwithstanding the January 2010 rating decision, the Board finds that there was no CUE in the February 2008 rating decision. However, there was CUE in the January 2010 rating decision. The earliest effective date that can be assigned is July 23, 2009, the date of the claim. To this extent, the claim is granted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel