Citation Nr: 19182425 Decision Date: 10/31/19 Archive Date: 10/30/19 DOCKET NO. 17-37 505 DATE: October 31, 2019 ORDER Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, right lower extremity, to include whether there was a clear and unmistakable error (CUE) in the April 2004 rating decision is denied. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, left lower extremity, to include whether there was a CUE in the April 2004 rating decision is denied. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, right upper extremity, to include whether there was a CUE in the April 2004 rating decision is denied. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, left upper extremity, to include whether there was a CUE in the April 2004 rating decision is denied. FINDINGS OF FACT 1. Entitlement to service connection for all residuals of a cold injury was granted in the April 2004 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence with regard to the effective date assigned within one year of the April 2004 rating decision. 2. The RO in its April 2004 rating decision did not commit an error of law or fact with their grant of service connection for residuals of a cold injury with a March 31, 2003 effective date. It is not debatable that the result would have been manifestly different but for any error. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 31, 2003, for residuals of a cold injury, right lower extremity, to include whether there was a CUE in the April 2004 rating decision have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.105(a), 3.400. 2. The criteria for an effective date prior to March 31, 2003, for residuals of a cold injury, left lower extremity, to include whether there was a CUE in the April 2004 rating decision have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.105(a), 3.400. 3. The criteria for an effective date prior to March 31, 2003, for residuals of a cold injury, right upper extremity, to include whether there was a CUE in the April 2004 rating decision have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.105(a), 3.400. 4. The criteria for an effective date prior to March 31, 2003, for residuals of a cold injury, left upper extremity, to include whether there was a CUE in the April 2004 rating decision have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.105(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from July 1950 to August 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Neither the Veteran nor his representative/attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, right lower extremity, to include whether there was a CUE in the April 2004 rating decision is denied. 2. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, left lower extremity, to include whether there was a CUE in the April 2004 rating decision is denied. 3. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, right upper extremity, to include whether there was a CUE in the April 2004 rating decision is denied. 4. Entitlement to an effective date prior to March 31, 2003, for residuals of a cold injury, left upper extremity, to include whether there was a CUE in the April 2004 rating decision is denied. Effective Date The Veteran contends that he is entitled to an effective date of August 21, 1979 for the grant of service connection for all residuals of his cold injury. This is the date of his initial claim. On August 21, 1979, the Veteran filed a claim for service connection for all residuals of his cold injury. In an August 1979 RO letter, it was stated that the Veteran’s military medical records were destroyed in a 1973 fire at the National Personnel Records Center. As a result of the destroyed records, the RO requested assistance and information from the Veteran pertaining to treatment or examination while on active duty. In particular, the RO requested statements from the Veteran’s friends he knew in-service, doctors, or other persons who had personal knowledge of his disabilities during service or within one year following his discharge. Additionally, the RO requested letters written during service which mention the Veteran’s disabilities, or prescription records where he received medication for his disabilities. In the December 1979 VA Form 21-523 (Disallowance Disability or Death Claim), the RO documented that the Veteran would be notified that it disallowed his disability claims citing a failure to furnish requested evidence. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final disallowance, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran filed a claim for service connection for all residuals of his cold injury on March 31, 2003. In the April 2004 rating decision, the RO granted service connection for all residuals of his cold injury with a March 31, 2003 effective date. This was the date he filed his claim. The Veteran did not file a notice of disagreement or submit new and material evidence with regard to the effective date assigned within one year of the April 2004 rating decision. This rating decision became final. In July 2014, the Veteran filed a claim for an earlier effective date for the grant of service connection for his cold injury residuals. To obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). A prior final RO rating decision must be reversed or revised where evidence establishes CUE. See 38 U.S.C. § 5109A (a); 38 C.F.R. § 3.105 (a). Any claim of CUE must be presented with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE, the Veteran cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). There is a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be undebatable such that had it not been made, would have manifestly changed the outcome at the time that it was made; and (3) a determination that there was CUE must be made based on the record and law that existed at the time of the prior adjudication in question. Bouton v. Peake, 23 Vet. App. 70 (2008); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). CUE is a very specific and rare kind of error. It must be an error of fact or law that when subsequently reviewed “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, 43-44 (1993). “Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging clear and unmistakable error to succeed. The governing law requires that the error be ‘undebatable’ and that the commission of the alleged error must have ‘manifestly changed the outcome’ of the decision.” King v. Shinseki 26 Vet. App. 433 (2014). The determination of CUE must be based upon 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). There is a presumption of validity to otherwise final decisions. An assertion of CUE is a collateral attack on an otherwise final rating decision by a VA RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). Where such decisions are collaterally attacked, the presumption is even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks benefits based on CUE has a much heavier burden than is placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran asserts that there was CUE in the April 2004 rating decision because he originally applied for benefits in 1979 and was told that his records were lost in a fire. Eventually his records were obtained and service connection was granted. He believes that because service connection was eventually granted, and his disability was present in 1979, he should be provided the earlier effective date. In its April 2004 rating decision, the RO relied on the Veteran’s VA medical records, lay statements, buddy statements, and an April 2004 Unavailability of Service Records Memorandum. The correct facts were before the adjudicator in April 2004. Neither the Veteran nor his representative have specified what laws or regulations they believe the RO misapplied in the April 2004 rating decision. Neither of them addressed the VA Form 21-523. In a May 2013 statement, the Veteran acknowledged that his claims were denied in 1979. In an October 2014 statement, the Veteran’s representative acknowledged that the Veteran requested benefits in August 1979 and his claim was denied because there was no proof of service in Korea or being wounded in combat. This demonstrates actual knowledge of the denial. The Veteran’s representative also argued that he should have been provided with a VA examination when he filed his claim in 1979. The representative also argued that because there were indications that the Veteran was in combat, VA should have requested records from the Army’s database of combat wounded veterans in 1979. VA’s breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). The Veteran submitted a newspaper article titled “VA report: 48 claims’ dates in L[ittle] R[ock] altered.” However, neither he nor his representative asserted that the dates of his claims were altered. The Board is sympathetic to the Veteran’s situation because he feels that his claim was not handled correctly and because VA failed to recognize his military service. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). “No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.