Citation Nr: 19152240 Decision Date: 07/05/19 Archive Date: 07/05/19 DOCKET NO. 16-32 081 DATE: July 5, 2019 ORDER Entitlement to an earlier effective date prior to November 19, 2013 for service connection for a left knee disability, to include on the basis of clear and unmistakable error (CUE) in the August 1986 rating decision, is denied. FINDINGS OF FACT 1. A claim for service connection for a left knee disability was received in June 1986. An unappealed August 1986 rating decision denied service connection for a left knee disability. 2. The correct facts, as known at the time, were before the VA adjudicators in August 1986, and the statutory and regulatory provisions extant at the time were correctly applied. 3. A claim to reopen service connection for a left knee disability was received in February 2007. The claim was denied in an unappealed August 2007 rating decision. 4. A claim to reopen service connection for a left knee disability was received on November 19, 2013. An October 2014 rating decision granted service connection for Osgood-Schlatter’s disease of the left knee, effective from November 19, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of an August 1986 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for entitlement to an earlier effective date prior to November 19, 2013 for the grant of service connection for a left knee disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1985 to May 1986. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. 1. Entitlement to an earlier effective date prior to November 19, 2013 for the grant of service connection for a left knee disability, to include whether there is clear and unmistakable error (CUE) in the August 1986 rating decision that denied service connection for a left knee disability The Veteran asserts that an earlier effective date is warranted for service connection for a left knee disability. He contends that there was CUE in the August 19, 1986 rating decision that denied entitlement to service connection for a left knee disability. In the August 1986 rating decision, the RO found that the Veteran complained of left knee problems in service. The rating decision found that he was diagnosed with Osgood-Schlatter’s disease and continued to experience difficulties with his knee until discharge. The examination noted that a March 1986 Medical Evaluation Board noted that his left knee condition was considered to be due to a preexisting condition which was not aggravated by service. Service connection for a left knee disability was therefore denied. The Veteran asserts that the RO erred in denying his claim for service connection for a left knee disability. In a June 2016 statement, the Veteran noted that his service treatment records show treatment for the left knee, and he was separated from service due to his left knee disability. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (b)(1). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1 (p). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400 (o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Finally, the Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes 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 (CUE); in short, in the absence of CUE, a final and binding RO decision will be accepted as correct. The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date. Flash v. Brown, 8 Vet. App. 332 (1995). In Shea v. Wilkie, 18-1735 (June 20, 2019), the Court of Appeals for Veterans Claims held that, when a claimant refers to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under the pre-2015 version of 38 C.F.R. 3.155 (a). A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). In this case, an August 1986 rating decision denied entitlement to service connection for a left knee disability. The Veteran did not file a timely Notice of Disagreement to the rating decision challenging this determination and did not submit new and material evidence within one year of the decision. Thus, the August 1986 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of 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. 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. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. Appx 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. After a careful review of the record, the Board finds that revision of the August 1986 rating decision on the basis of CUE is not warranted. The Veteran’s service treatment records reflect that no left knee disabilities were noted upon enlistment in February 1985. In July 1985, the Veteran complained of left knee pain. A March 1986 Medical Board report reflects diagnoses of (1) chondromalacia patella, left knee, existing prior to service, not aggravated (2) patellar malalignment, left knee, existing prior to service, not aggravated, and (3) Osgood-Schlatter’s disease, left knee, existing prior to service, not aggravated. The Medical Board report noted that the Veteran presented to the orthopedic clinic after having increased retropatellar tendon tenderness of the left knee that was significantly symptomatic during boot camp. The Veteran described having symptoms consistent with Osgood-Schlatter’s disease at age 15, which resolved spontaneously with conservative therapy. Over the past 9 months, the Veteran had increasing symptoms of pain in the infrapatellar region as well as the posterior infrapatellar tendon region, which had been unresponsive to conservative therapy. Physical examination of the left knee showed a markedly prominent tibial tubercle which was minimally tender to deep palpation. There was significant retropatellar tenderness, which was increased with quadriceps contraction and pressure over the superior pole of the patella. A left knee x-ray revealed the presence of evidence of old Osgood-Schlatter’s disease with a displaced tibial tubercle. Based on the findings of the Medical Evaluation Board, it was recommended that the Veteran be discharged due to physical disability. The RO found that the Veteran’s left knee condition was considered to be a pre-existing condition, which was not aggravated by military service. The RO found that the Veteran’s induction examination was negative for a left knee disability. He began complaining of left knee pain in 1985 and was diagnosed with Osgood-Schlatter’s disease. The decision found that he continued to experience difficulties with his knee until discharge. An examination performed in March 1986 before a Medical Evaluation Board noted that his left knee was considered to be due to a preexisting condition which was not aggravated by military service. Based on the Medical Board examination, the RO found that the left knee disability existed prior to service and was not aggravated in service. The Veteran contends that the RO should have granted service connection for his left knee disability based on his treatment for a left knee disability in service and the Medical Board report noting a left knee disability. As noted above, the RO considered the service treatment records and found that the Veteran’s left knee disability existed prior to service and was not aggravated in service. The Veteran's argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. However, "[i]t is the prerogative of the factfinder. . . to interpret the evidence and draw reasonable inferences from it." Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. At the time of the rating decision, 38 C.F.R. § 3.304 (b) (1986) provided that a veteran was considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto. Thus, in conducting its presumption of soundness analysis under 3.304(b) (1986), the RO was not required to find clear and unmistakable evidence that the disability was not aggravated by service. In this case, the presumption of soundness does apply, as the Veteran's left knee was noted as normal on entrance, and there were no notations of any defects on entrance examination. In a precedent opinion issued several years after the rating decision, the VA General Counsel concluded that 38 C.F.R. § 3.304 (b) conflicted with 38 U.S.C. § 1111, and that the regulation was therefore invalid. See VAOPGCPREC 3-2003 (2003). The United States Court of Appeals for the Federal Circuit (Federal Circuit) adopted the General Counsel's position. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, judicial decisions that formulate new interpretations of the law subsequent to a VA decision cannot be the basis of a valid CUE claim. Berger v. Brown, 10 Vet. App. 166, 170 (1997). The application of a regulation that has been subsequently invalidated does not constitute CUE. VAOPGCPREC 25-95. Further, in Jordan v. Nicholson, the Federal Circuit held that its holding in Wagner does not apply retroactively to final decisions where the error alleged is failure to comply with 38 U.S.C. § 1111. See 401 F.3d 1296, 1298-99 (Fed. Cir. 2005). More recently, in George v. Wilkie, the Court held that the Federal Circuit's holding in Wagner does not apply retroactively to final decisions regardless of whether the error alleged is the failure to comply with either 38 U.S.C. § 1111 or 38 C.F.R. § 3.304. See No. 16-2174, 2019 U.S. App. Vet. Claims LEXIS 19 (Vet. App. Jan. 4, 2019). Thus, the failure of the RO to find that a veteran’s condition was clearly and unmistakably not aggravated by service cannot be considered to be CUE. At the hearing, the Veteran’s representative stated that the Veteran should have been afforded a VA examination in 2007 before his claim was denied. In Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a breach of a duty to assist cannot constitute CUE and that "grave procedural error" does not render a decision of VA non-final. As the correct facts were before the adjudicator and the applicable law was correctly applied, the Board finds no CUE in the August 1986 rating decision. Thus, the Veteran's motion for revision of the rating decision based on CUE is denied. Having determined that revision of the August 1986 rating decision based on CUE is not warranted, the Board will consider whether there is a basis for an earlier effective date for service connection for a left knee disability. In December 1988, the Veteran submitted correspondence requesting re-evaluation of his right shoulder. The correspondence did not mention the left knee. In May 1989, the Veteran submitted a statement in which he noted that he “wish[ed] to be evaluated for an increase to [his] service connected disability.” As his only service-connected disability at that time was a right shoulder condition, the statement was interpreted as a claim for an increase for that disability. In June 1989, the Veteran informed the RO that he was willing to report for a VA examination of his right shoulder. In March 1990, the Veteran submitted a claim for vocational rehabilitation benefits. The filing did not express any intent to seek service connection for a left knee disability. The Board acknowledges that there are VA treatment records dated in 1989 referring to a left knee disability; however, the Veteran did not submit any filings referring to those specific medical records which would raise an informal claim for service connection for a left knee disability under Shea. After the March 1986 rating decision, the Veteran’s next communication about the left knee was a claim to reopen service connection for a left knee disability, which was received in February 2007. An August 2007 rating decision denied the claim to reopen service connection for Osgood-Schlatter’s disease, finding that new and material evidence was not received. The Veteran did not appeal the August 2007 rating decision, and it became final. A claim to reopen service connection for a left knee disability was received on November 19, 2013. An October 2014 rating decision granted service connection for Osgood-Schlatter’s disease of the left knee, effective from November 19, 2013, the date of the claim. Given that the April 1986 and August 2007 rating decisions both became final, in the October 2014 rating decision, the RO appropriately assigned the earliest effective date possible based on the filing to reopen the case after final disallowances, subsequent to the laws governing the assignment of effective dates as stated in 38 C.F.R. § 3.400. Therefore, the effective date of November 19, 2013 is appropriate. For the foregoing reasons, an earlier effective date prior to November 19, 2013 for service connection for a left knee disability is not warranted, to include on the basis of CUE in the August 1986 rating decision. The Board has considered the benefit of the doubt doctrine in this decision. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski 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.