Citation Nr: 19116383 Decision Date: 03/06/19 Archive Date: 03/06/19 DOCKET NO. 09-46 466 DATE: March 6, 2019 ORDER An earlier effective date of March 1, 1982 for the grant of service connection for right foot cold injury residuals is granted. An earlier effective date of March 1, 1982 for the grant of service connection for left foot cold injury residuals is granted. The purported issue of clear and unmistakable error (CUE) in a June 22, 1982 Regional Office (RO) rating decision denying service connection for cold injury residuals of the feet is dismissed. FINDINGS OF FACT 1. VA received a claim for service connection for cold injury residuals of the feet on March 1, 1982. 2. The original claim for service connection for cold injury residuals was denied in a June 1982 rating decision. 3. The presumption of regularity having been rebutted, VA is unable to meet the burden of showing that the Veteran received the July 2, 1982 letter informing of the June 1982 service connection denial, and the March 1, 1982 claim remained open at the time of the October 2010 rating decision granting service connection for right and left foot could injury residuals. 4. As the June 22, 1982 rating decision denying service connection for cold injury residuals of the feet did not become final, and as the instant decision grants the earliest effective date available at law for service connection for right and left foot cold injury residuals, the Veteran’s CUE motion has been rendered moot. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 1, 1982 for the award of service connection for right foot cold injury residuals have been met. 38 U.S.C. §§ 5103A, 5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 2. The criteria for an effective date of March 1, 1982 for the award of service connection for left foot cold injury residuals have been met. 38 U.S.C. §§ 5103A, 5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 3. As the Veteran’s CUE motion has been rendered moot, the motion must be dismissed. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 3.105(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1964 to February 1966. This matter came before the Board of Veterans’ Appeals (Board) on appeal from October 2010 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a January 2016 Central Office hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The instant matter has a complicated procedural history. On September 15, 2008, the Veteran filed a claim to reopen the issue of service connection for cold injury residuals. The claim was denied in a May 2009 RO rating decision, which the Veteran appealed. Upon further development, in an October 2010 rating decision the RO granted service connection for right and left foot cold injury residuals. In November 2010, the Veteran filed a VA Form 21 526b, Veteran’s Supplemental Claim, arguing that there was CUE in the effective date assigned for the cold injury residuals. A subsequent February 2011 RO rating decision found no earlier effective date on the basis of CUE was warranted. This rating decision was appealed by the Veteran, and in September 2012 the RO issued a statement of the case (SOC) on the question of an effective date earlier than September 15, 2008 for the grant of service connection for cold injury residuals of the right and left foot on the bases of CUE. The appeal was perfected by the Veteran. In a June 2014 decision, the Board found that a February 2011 Statement in Support of Claim provided by the Veteran constituted a notice of disagreement (NOD) to the effective date assigned by the RO in October 2010. As such, the Board remanded the question of entitlement to an earlier effective date on a non CUE basis for the issuance of a SOC pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). It does not appear that this SOC was ever issued by the agency of original jurisdiction (AOD), however, this does not prevent the Board from addressing the issue in the instant matter. The February 2011 NOD gives the Board the jurisdictional authority to consider the earlier effective date issues, even without issuance of a SOC, which includes granting the issues if all the evidence to do so is already of record. See Manlincon, 12 Vet. App. at 240 (stating that a notice of disagreement is a jurisdiction conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) (“appellate review of an RO decision is initiated by an NOD”); Marsh v. West, 11 Vet. App. 468, 470 (1998) (“an untimely NOD deprives [BVA] of jurisdiction”); Percy v. Shinseki, 23 Vet. App 37 (2009) (noting that the Board’s exercise of jurisdiction over a matter is derived from the notice of disagreement). The purpose of the SOC is rendered moot by the Board’s grant of the earliest effective date available at law for the right and left foot cold injury residuals. The purpose of the SOC is to provide the Veteran a summary of the evidence, summary of the legal authority, and basis for denial of the claim to allow the Veteran to present written and/or oral arguments before the Board to support the appeal. 38 C.F.R. § 19.29 (2018). Information furnished with the SOC includes notice of the right to file and time limit for filing a substantive appeal to the Board. 38 C.F.R. § 19.30 (2018). As the Board is granting the earlies effective date at law for the cold injury residuals, constituting a full grant of the benefits sought on appeal, and is effectively waiving the substantive appeal requirement for this Veteran by doing so, the purpose of the notice with the SOC is also rendered moot. See Percy, 23 Vet. App 37 (holding that 38 U.S.C. § 7105(d)(3), which is the governing statute pertaining to the time frame for submitting substantive appeals, is not jurisdictional, so the requirement may be waived by VA actions). Upon the matter being returned to the Board, in an April 2016 decision, the Board only addressed the question of CUE in the June 22, 1982 rating decision denying service connection for cold injury residuals. The Board found no CUE, and the Veteran appealed the April 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 Memorandum Decision, the Court reversed the Board’s finding that the June 22, 1982 rating decision was final based upon the presumption of regularity with regard to the mailing of the June 22, 1982 rating decision, and remanded the issue to the Board for further proceedings consistent with the decision. As the instant decision awards the earliest effective date available at law on a non CUE basis and dismisses the CUE question on appeal, the Board need not address its responsibilities under Forcier v. Nicholson, 19 Vet. App. 414 (2006), at this time. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants the earliest effective date available at law for service connection for cold injury residuals of the right and left feet, no further discussion of VA’s duties to notify and assist is necessary. 1. Earlier Effective Date for Service Connection for Right Foot Cold Injury Residuals 2. Earlier Effective Date for Service Connection for Left Foot Cold Injury Residuals An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA received a claim for service connection for cold injury residuals of the feet on March 1, 1982. This original claim for service connection for cold injury residuals was denied in a June 1982 rating decision, and on July 2, 1982, the AOJ sent a letter to the Veteran informing of this denial. Throughout the course of this appeal it has been the Veteran’s contention that this denial letter was never received. Regarding an assertion that a mailing was not received by a veteran, there is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” See United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15, 47 S. Ct. 1 (1926). In Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), the Court found that the presumption of regularity applied to VA. The Court found that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. The presumption is not absolute; it may be rebutted by the submission of clear evidence to the contrary. Once clear evidence is submitted, VA is no longer entitled to the benefit of the presumption and the burden shifts to VA to establish that a government official properly discharged his or her official duties. In its April 2016 decision, the Board found that the presumption of regularity applied to the instant matter despite the presence of slight typographical errors in the address. The Court disagreed with the Board in its July 2018 memorandum decision, finding that the typographical errors were sufficient to rebut the presumption of regularity. As the Court has found the presumption of regularity to be rebutted, it is now upon VA to establish that the July 1982 lettering informing the Veteran of the service connection denial was sent to, and received by, the Veteran. The Board has reviewed all of the evidence of record and finds that, the presumption of regularity having been rebutted, VA is unable to meet the burden of showing that the Veteran received the July 2, 1982 letter informing of the denial of service connection for cold injury residuals of the right and left feet. As such, the Board finds that the March 1, 1982 service connection claim remained open at the time of the October 2010 rating decision granting service connection for right and left foot cold injury residuals. As the March 1, 1982 claim for service connection for cold injury residuals of the feet remained open at the time of the October 2010 RO rating decision granting service connection for right and left foot cold injury residuals, and as the evidence of record indicates that entitlement to benefits arose at or prior to the date of claim, the Board finds that the RO erred in assigning an effective date of September 15, 2008 for the grant of service connection. Rather, the Board finds the appropriate effective date to be the original date of claim. As such, the Board finds that an earlier effective date of March 1, 1982, for the grant of service connection for both right and left foot cold residuals is warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As this is the earliest effective date available at law, this constitutes a complete grant of the effective date issues on appeal. 3. CUE Assertion in June 22, 1982 RO Rating Decision Denying Service Connection for Cold Injury Residuals Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. 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. 38 C.F.R. § 3.105(a). For all the reasons discussed above, the June 22, 1982 RO rating decision denying service connection for cold injury residuals of the feet did not become final. Further, in the instant decision, upon de novo review, the Board finds that the RO erred in October 2010 when it assigned an effective date for the grant of service connection for cold injury residuals of the right and left feet of September 15, 2008. As the June 22, 1982 rating decision was non final, and as the Board assigns an effective date of March 1, 1982 for the grant of service connection for cold injury residuals of the right and left feet, the earliest effective date available at law, the Board finds that the CUE motion has been rendered moot, and that dismissal of the CUE motion is warranted. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel