Citation Nr: 20007158 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 09-34 379 DATE: January 28, 2020 ORDER An effective date prior to May 30, 2007, for the grant of service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome, to include whether there was clear and unmistakable error (CUE) in a January 1993 rating decision that denied service connection for a chronic lower back disability is denied. Service connection for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The January 1993 rating decision did not contain an error which was outcome determinative. 2. The Veteran’s successful application to reopen his claim of service connection for a lumbar spine disability was received on May 30, 2007. 3. The Veteran does not have radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. The January 1993 rating decision, which denied entitlement to service connection for a chronic lower back disability is final. 38 U.S.C. § 7105(c) (2012). 2. The January 1993 rating decision, which denied entitlement to service connection for a chronic lower back disability was not clearly and unmistakably erroneous. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.105. 3. The criteria for an effective date prior to May 30, 2007, for the grant of service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for entitlement to service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to November 1992. These matters came before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and September 2015 rating decisions issued by RO. The Veteran testified before the undersigned in a February 2017 video-conference hearing. A transcript of the hearing is included in the electronic claims file. The Board remanded these claims in August 2017. With respect to the claim for an earlier effective date for the grant of service connection for the lumbar spine disability, the Board instructed the Agency of Original Jurisdiction (AOJ) to adjudicate the intertwined issue of CUE in the January 1993 rating decision that denied service connection for a chronic lower back disability. With respect to the claim for service connection for radiculopathy of the right lower extremity, the Board instructed the AOJ to issue a statement of the case (SOC) addressing the issue and provide the Veteran with an appropriate time to perfect an appeal of that issue. The AOJ adjudicated the issue of CUE in the January 1993 rating decision that denied service connection for a chronic lower back disability in the June 2019 supplemental SOC. The AOJ issued an SOC addressing the claim of service connection for radiculopathy of the right lower extremity in March 2019 and the Veteran perfected an appeal of this issue in April 2019. Thus, the requested development has been completed and the claims on appeal have been returned to the Board for appellate disposition. The Veteran filed a notice of disagreement (NOD) to the September 2018 rating action in June 2019, disagreeing with the denial of service connection for degenerative arthritis of the cervical spine with IVDS. The electronic record indicates that the AOJ is acting on this issue. Although the matter is therefore within the Board’s jurisdiction, it has not been certified for appellate review and the Board will not undertake review of the matter at this time. If the matter is not resolved in the Veteran’s favor, the RO will certify this matter to the Board which will undertake appellate review of the RO’s action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board’s jurisdiction is triggered by the timely filing of a notice of disagreement); 38 C.F.R. § 19.35 (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). 1. Entitlement to an effective date prior to May 30, 2007, for the grant of service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome, to include whether there was CUE in a January 1993 rating decision that denied service connection for a chronic lower back disability. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the Court has established a three-prong test. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied. Second, the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made. Third, a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of “error.” It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on 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). A petition for revision due to CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). There is a presumption of validity that attaches to a final decision. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). In considering the CUE petition, the Board must consider the law in effect at the time of the January 1993 rating decision. VA regulations applicable at the time of the January 1993, rating decision included a section sub-headed “Principles relating to service connection” under 38 C.F.R. § 3.303 (1993) which provided: (a) Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. (b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. (c) Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. (d) Post service initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. The Veteran did not file a timely notice of disagreement. Therefore, absent a finding of CUE, the January 1993 rating decision and the determination therein is final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed his initial claim for service connection for lower back injury with chronic pain in November 1992. In denying his initial claim, the RO noted that the service treatment records showed that in April 1990, the Veteran strained his back while on the job and the impression was low back muscle strain. The Veteran complained of low back pain once or twice more following a motor vehicle accident in September 1990 and examination in January 1991 showed a diagnosis of low back ache. The RO noted that x-ray results in May 1992 showed normal lumbosacral spine and no diagnosis of a low back disability was made on Medical Board examination. The RO concluded no chronic pathology of the low back was found at the time of Medical Board examination and determined there was no basis for service connection since this was indicated to have been an acute condition. Evidence existing and considered at the time of the unappealed January 1993 rating decision included the service treatment records. In his December 2015 Substantive Appeal (VA Form 9), the Veteran asserted that statements made in the SOC were incorrect as his service treatment records demonstrated a chronic low back condition. Further, he noted that the rating decision in January 1993 specifically mentioned carotid pathology of the lower back in two instances. He asserted that no claim was ever made for that condition. He contended this affected and confused the understanding of the denial and concluded therefore that he was not denied service connection for a lower back injury with chronic pain in that January 1993 rating decision. Thus, all subsequent decisions referred to a decision that was improperly rendered and have no force. During his February 2017 Board hearing, the Veteran noted that VA failed to conduct an examination in January 1993 to evaluate his claimed low back disability. He testified that the evidence used to grant the claim in 2015 was of record in January 1993 and that if VA had conducted an examination his claim for service connection would have been granted in January 1993. Evidence of in-service incurrence was not then questioned. At issue was the question as to whether the evidence showed that the Veteran had current low back disability. The evidence was weighed by the adjudicators including the service treatment records that were carefully reviewed (as documented in the January 1993 rating decision). Considering that careful review of the service treatment records, the adjudicators essentially determined that an examination was not necessary. Reasonable minds could have come to different conclusions regarding the question of whether there was evidence of a current low back disability. The law provides that a mere disagreement as to how the facts were weighed or evaluated does not amount to a cognizable assertion of clear and unmistakable error. Baldwin v. West, 13 Vet. App. 1, 5 (1999). Moreover, the failure to obtain certain records (e.g., a VA examination) is a failure in the duty to assist, which cannot constitute CUE as a matter of law. 38 C.F.R. § 20.1403(d); Luallen v. Brown, 8 Vet. App. 92, 95 (1995). To prevail in an application for revision because of CUE, it is not enough to show that the evidence of record at the time of the challenged decision suggested that another outcome was possible. Rather, it must be shown that proper application of governing law to the factual evidence mandated only one possible outcome. Neither the evidence of record at the time, nor governing law in January 1993, was such that it was beyond the judgment of the RO to find that service connection for a chronic lower back disability was not warranted, and that adjudicators made a determination on a question on which reasonable minds might differ is an insufficient basis upon which to predicate a finding of CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253-54 (1991). The January 1993 rating decision did not include the kind of error of fact or law which would compel a conclusion that the result would have been manifestly different but for the alleged error. There is no basis upon which to find CUE in the January 1993 decision. Unless otherwise specified, 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 is to be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). 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. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The original claim for compensation was received in November 1992 and denied in January 1993. On May 30, 2007, the Veteran’s request to reopen his claim for service connection for a lower back disability was received. Ultimately, the RO granted service connection in September 2015 and assigned the appropriate effective date of May 30, 2007 (in the November 2015 rating decision). Effective dates are generally determined by the date of receipt of a claim and here, no exceptions to the general rule are applicable. May 30, 2007, represents the earliest possible date of receipt of a claim to reopen. 38 U.S.C. § 5110(a). The appeal is denied. 2. Entitlement to service connection for radiculopathy of the right lower extremity Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that he has radiculopathy of the right lower extremity that was caused or aggravated by his service-connected degenerative arthritis of the lumbar spine with IVDS. November 2016 VA treatment record documents the Veteran’s complaint of low back pain with numbness/tingling into the lower extremity, left greater than right. Electrodiagnostic testing showed no electrodiagnostic evidence of bilateral lumbar radiculopathy (i.e., no right lower extremity radiculopathy). The June 2018 report of VA Back conditions examination documents diagnosis, in relevant part, of radiculopathy of the left lower extremity. He had no radicular pain or signs or symptoms due to radiculopathy in the right lower extremity. The claim of service connection for right lower extremity radiculopathy must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Here, the Veteran has presented no evidence of and the more probative evidence establishes that the Veteran does not radiculopathy of the right lower extremity. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is a layperson and is not competent to self-diagnose that he radiculopathy of the right lower extremity. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is a layperson and is not competent to establish that he has current radiculopathy of the right lower extremity. The Veteran is not competent to diagnose or offer opinion as to etiology of any claimed radiculopathy of the right lower extremity. The question regarding the diagnosis or etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. (Continued on the next page)   The claim of entitlement to service connection for radiculopathy of the right lower extremity must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.