Citation Nr: A19003028 Decision Date: 11/21/19 Archive Date: 11/21/19 DOCKET NO. 190822-23981 DATE: November 21, 2019 ORDER Entitlement to an effective date earlier than July 23, 2018 for the initial grant of service connection for cold injury, left foot (claimed as residuals of cold injuries) based on clear and unmistakable error (CUE) is denied. Entitlement to an effective date earlier than July 23, 2018 for the initial grant of service connection for cold injury, right hand, including contracture of one finger, (claimed as of cold injuries) based on CUE is denied. Entitlement to an effective date earlier than July 23, 2018 for the initial grant of service connection for cold injury, left hand, including contracture of one finger, (claimed as residuals of cold injuries) based on CUE is denied. Entitlement to an effective date earlier than July 23, 2018 for the initial grant of service connection for cold injury, right foot, to include the right great toenail, (claimed as residuals of cold injuries) based on CUE is denied. FINDINGS OF FACT 1. The Veteran did not appeal either the June 2013 or August 2016 rating decision that denied entitlement to service connection for cold injury residuals of each hand, including contracture of one finger of each hand, and each foot, including the right great toenail. Both decisions became final. 2. The June 2013 and August 2016 rating decisions that denied entitlement to service connection for cold injury residuals of each hand, including contracture of one finger of each hand, and each foot, including the right great toenail, were reasonably supported by the evidence of record at that time, were consistent with the laws and regulations then in effect, and neither contained undebatable error that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The June 2013 and August 2016 rating decisions that denied entitlement to service connection for cold injury residuals of each hand, including contracture of one finger of each hand, and each foot, including the right great toenail, are final, and neither contained CUE. 38 U.S.C. §§ 5109A, 7105 (2014); 38 C.F.R. §§ 3.105(a), 20.302 (2018). 2. The requirements for entitlement to an effective date earlier than July 23, 2018 for the initial grant of service connection for cold injury residuals of each hand, including contracture of one finger of each hand, and each foot, including the right great toenail, based on CUE in June 2013 and August 2016 rating decisions are not met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1948 to May 1952. He participated in combat campaigns in South Korea, North Korea, and at the Chosin Reservoir in China. In an April 2019 rating decision, the Agency of Original Jurisdiction (AOJ) determined that the assigned effective date of July 23, 2018 for the grant of entitlement to service connection for cold injury residuals of several extremities was not the result of CUE. See 04/04/2019 Rating Decision – Narrative. The Veteran timely selected the Higher-Level Review lane, Direct Review by a Veterans Law Judge, when he opted in to the Appeals Modernization Act (AMA) review system by submitting a VA Form 20-0996 in May 2019, and a Form 10182 in July 2019. See 05/09/2019 VA 21-0996; 07/22/2019 Form 10182. Although the April 2019 rating decision addressed the effective date for the grant of service connection for cold injury residuals of several extremities, each ear, and the nose, as discussed in detail later in this decision, the Veteran’s claim of CUE only involves the assigned effective date for the grant as it concerned each hand, including the contracture of one finger of each hand, and each foot, to include the nail of the right great toe. See, e.g., 01/10/2019 VA 21-4138 [a copy of his June 2011 informal claim]. The rating decision that assigned the effective date for the grant of service connection for cold injury residuals of each ear, and the nose is not yet final, as the appeal period has not expired. Hence, it cannot be the subject of a CUE motion. 38 C.F.R. § 3.105(a). Thus, those exposed areas will not be addressed in this decision as they are not ripe for appellate consideration. Legal Requirements for CUE The United States Court of Appeals for Veterans Claims (Court) has specifically held that the VCAA has no application to allegations of CUE as a matter of law, regardless of whether the Board or AOJ issued the earlier decision in question. The VCAA does not apply to a CUE claim or motion because it is not a claim for benefits, but, rather, is a collateral attack on a final decision. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002); see also 38 U.S.C. §§ 5109A (a); 7111(a); 38 C.F.R. §§ 20.1400-20.1411. Finality Requirement The first requirement for a CUE motion is that the rating decision in question is final. 38 C.F.R. § 3.105(a). The AOJ received the Veteran’s initial claim of entitlement to service connection for cold injury residuals in May 2011. See 01/10/2019 VA 21-4138 [a copy of his June 2011 informal claim]. In it, he identified his feet and hands, the right great toenail, and the left little finger as the affected areas. Id. In a June 2013 rating decision, the AOJ denied the claim. A VA letter dated that same month informed the Veteran of the decision. See 06/13/2013 Rating Decision – Codesheet (noting an original claim received in May 2011, and Narrative; 06/17/2013 Notification. The Veteran did not appeal the decision nor was additional related evidence received within one year of the decision. Hence, the June 2013 rating decision became final. See 38 C.F.R. § 20.302. The Board notes that in a February 2015 statement, the Veteran asserted that in June 2013 he submitted a NOD to his representative who was to submit it to VA, but that VA could not find it. He repeated that assertion in a 2019 statement. See 02/25/2015; 01/08/2019 VA 21-4138. That issue, however, is not before the Board for purposes of deciding the CUE motion. As noted, CUE motions are decided solely on the basis of the record as it existed at the time of the challenged decision. Based on the evidence of record, there was no appeal of the June 2013 rating decision. Hence, it is final. Further, based on the discussion that follows, the Board finds that the Veteran has in fact asserted CUE in the June 2013 rating decision as well as in the August 2016 rating decision, since his asserted bases are essentially the same. In March 2016, the Veteran requested that his claim for cold injury residuals be reopened. See 03/23/2016 VA 21-526EZ, P. 3. In a statement submitted in conjunction with the application to reopen the claim, he requested a VA examination to determine if the provisions of M21 were properly followed since his claim was previously denied because of the absence of documentation of cold injuries in the service treatment records (STRs). He also conceded that an appeal period was past, but that there is no time limit for a determination of CUE. See 03/23/2016 VA 21-4138. Read in the context of a pro se pleading and the history of the claim, it is clear that the Veteran was referring to the June 2013 rating decision. The AOJ, however, did not consider the statement as a formal CUE motion as concerned the June 2013 rating decision but an application to reopen, since examinations were arranged. An August 2016 rating decision reopened the claim and denied it on the merits. See 08/29/2016 Rating Decision – Narrative. A VA letter dated that same month informed him of the decision. See 08/29/2011 Rating Decision – Narrative; 08/31/2016 Notification. In September 2016, the Veteran requested a reconsideration of the denial. The AOJ informed him that he had the right to appeal the decision, as the appeal period had not expired. See 09/16/2019 VA 21-526EZ; 10/13/2016 Notification. The Veteran did not appeal the decision, and no additional related evidence was received within one year. Hence, the August 2016 rating decision also became final. 38 C.F.R. § 20.302. VA received the Veteran’s specific CUE motion in July 2018. See 07/23/2018 VA 21-4138. CUE Substantive Requirements Generally, CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997). Previous determinations that are final and binding (including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues) will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7105(c), 7111(a) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.1403 (2018). The appellant bears an “extra-heavy burden” when moving or requesting revision of a prior final decision based on CUE, as “[a] final decision is entitled to a strong presumption of validity.” Berger v. Brown, 10 Vet. App. 166, 169 (1997). 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. 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. An assertion that the adjudicators had “improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.” Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, [CUE]. Id. at 43-44. The failure to fulfill the duty to assist also cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 424 (1996). The Court has established a three-prong test defining CUE, which is as follows: (1) 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; (2) 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 (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). “In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). The record in the appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). A finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). When there is evidence both favorable and unfavorable on the issue, it is impossible for a Veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). CUE motions are not “appeals,” so they are not subject to the Parts 19 or 20 of Title 38 of the C.F.R. regarding the processing of appeals, and the benefit-of-the-doubt rule under 38 U.S.C. § 5107(b) does not apply. 38 C.F.R. §§ 20.1402, 20.1411. The current provisions of 38 C.F.R. § 3.105(a) are essentially the same as in 2013. So, all cites in this decision are to the current version. 1. Whether the June 2013 rating decision contained CUE. Although the Veteran’s initial claim was received in May 2011, a VA examination was not conducted until 2013. The June 2013 examination report (06/13/2013 C&P Examination, P. 3 et seq) reflects that the examiner noted the Veteran’s complaints of numbness and cold sensitivity in his fingers and toe tips with pins-and-needles sensation over the prior few years, and that his symptoms had worsened recently. The Veteran reported further that he had been on thyroid medication for 1 to 2 years. The examiner noted that the Veteran’s VA outpatient records for the period 1999 to 2002, when the Veteran stopped coming to VA, were silent for cold injury complaints. The examiner noted further that there was no documentation in the Veteran’s service treatment records (STRs) of any cold injuries during his active service. Id., P. 4. Physical examination revealed cold sensitivity of each hand and each foot; there were no signs or symptoms at either ear. The examiner opined that cold sensitivity and numbness in all extremities were symptoms, not pathology. No nail abnormalities were noted; all peripheral pulses were 1+; and, the lack of muscle mass and depleted fat stores in all extremities was age appropriate. Hence, the examiner opined, there was no evidence to support a cold injury, and that the Veteran’s reported symptoms might be secondary to hypothyroidism. Id., P. 6. The examiner rendered a similar opinion as concerned a finger contracture of the right hand. The examiner opined that the contracture, which reportedly developed several years after service, was not associated with a cold injury, and because there was no record of in-service cold exposure. Id., P. 14. As noted earlier, a June 2013 rating decision denied the claim, and the Veteran did not appeal it. Hence, it became final. The Veteran’s CUE motions meet the requirement of specificity. Concerning both the July 2013 and August 2016 rating decisions, he asserts that the AOJ failed to comply with the provisions of the M21 as it pertains to adjudication of cold injury claims of Veterans who participated in combat at the Chosin Reservoir. The Veteran also asserted that the June 2013 examination was inadequate, as no diagnostic tests were conducted, and that the examiner’s reference to hypothyroidism was pure speculation. See 09/16/2016 VA 21-4138, 21-526EZ. The Board first addresses the Veteran’s assertion that the AOJ did not properly comply with the M21-1. The pertinent provision provides that, “If the Veteran’s participation in the Chosin Reservoir Campaign is confirmed, concede exposure to extreme cold under the provisions of 38 U.S.C. § 1154(a).” M21-1, Part III, Subpart iv, Chapter 4, Section G.4.f. Although it was not noted in the June 2013 rating decision, in the 2013 examination request, the AOJ specifically advised medical authorities that the Veteran participated in the Chosin Reservoir Campaign; and, therefore, exposure to extreme cold was conceded. See 05/08/2013 VA 21-2507a, P. 2-3. Hence, contrary to the Veteran’s assertion, the AOJ did not fail to comply with the M21-1. Apparently, the examiner did not review the examination request, or he ignored or misunderstood its significance, since he noted in the examination report that there was no evidence of in-service cold exposure. Nonetheless, this does not aid the Veteran’s motion, for, as the June 2013 rating decision noted, the primary reason the rating board denied the claim is that the VA examiner did not render a diagnosis of cold injury for either extremity or joint claimed. The M21 provision does not obviate the requirement that existing cold injury residuals be diagnosed. See also 38 C.F.R. § 3.303(a). Thus, there was no failure to comply with a regulation by not returning the examination report to the examiner for an addendum. The Board now addresses the second facet of the Veteran’s CUE motion. In this regard, the Veteran also asserted that the June 2013 examination was inadequate. While that may well have been the case, as was addressed in subsequent iterations of the claim, an inadequate examination falls under the auspices of a failure to adequately assist the Veteran with his claim. See 38 C.F.R. § 3.159(c). As noted earlier in this discussion, such failures do not rise to the level of CUE. Crippen, 9 Vet. App. at 424. Thus, the evidence of record shows that the adjudicator complied with the applicable procedure in question, the M21-1; and, the correct facts were before the adjudicator, as the Veteran’s in-service exposure to extreme cold was conceded. In the absence of a nexus between the conceded exposure and diagnosed illness, however, there was no basis for granting the claim. This means that there was no statute or regulation not complied with, and there was not an unknown fact that would have changed the 2013 outcome. The fact that an alleged inadequate examination led to an unfavorable result is not CUE. Hence, the Veteran has not carried his burden of demonstrating CUE in the June 2013 rating decision. 38 C.F.R. § 3.1059(a). 2. Whether the August 2016 rating decision contained CUE As discussed above, the June 2013 rating decision became final. While the AOJ did not treat the March 2016 statement as a CUE motion, it did deem it an application to reopen the previously denied claim for cold injury residuals. The examination reports (08/25/2016 C&P Examination, 1st Entry) reflect that the examiner essentially relied on the June 2013 examination report. The examiner again noted the absence of any record of in-service cold injury. As was the case in 2013, the examiner opined that there was no etiological association of the findings with cold injury per the medical literature. Id., P. 16-17. As was the case in 2013, the AOJ examination request specifically advised the medical authorities that the Veteran was a survivor of the Chosin Reservoir Campaign, and that in-service exposure to extreme cold was conceded. See 08/18/2016 VA 21-2507a, P. 2. The discussion of whether the June 2013 rating decision contained CUE is incorporated here by reference. The examination request again shows that the AOJ complied with the M21 as it pertained to survivors of the Chosin Reservoir Campaign. The Board acknowledges that the August 2016 rating decision erroneously notes that there was no evidence of an event, disease, or injury in service, which is patently inconsistent with the aforementioned concession of in-service exposure to extreme cold. See 08/29/2016 Rating Decision – Narrative. Nonetheless, the rating decision also notes that the medical examiner did not diagnose any cold injury residuals and opined that the Veteran had not previously been diagnosed with any cold injury residuals, which was consistent with the state of the record at that time. Hence, the Board finds that the Veteran was again left with an inadequate examination as the salient basis for his CUE motion. As discussed above, a failure to adequately assist a claimant is not a basis for CUE. Thus, the Board finds no CUE in the August 2016 rating decision. 38 C.F.R. § 105(a). Turning now to the question of whether an earlier effective date is warranted, a November 2018 granted service connection and assigned the effective date for the noted extremities. An April 2019 rating decision determined that the assigned effective dates were not based on CUE. See 04/04/2019 Rating Decision – Narrative. Therefore, the November 2018 rating decision correctly assigned an effective date of July 23, 2018, the date VA received the Veteran’s claim to reopen/CUE motion. See 38 C.F.R. § 3.400(r).   In order for the assigned effective date of July 23, 2018 to be CUE, the Veteran must have successfully proved that either the June 2013 or August 2016 rating decision contained CUE. As already decided, he did not. Hence, the November 2018 rating decision that assigned the effective date of July 23, 2018 was not based on CUE. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.