Citation Nr: 20009596 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-51 937 DATE: February 6, 2020 ORDER The claim of clear and unmistakable error (CUE) in a July 17, 2009 rating decision which denied service connection for residuals of a traumatic brain injury is denied. Entitlement to an effective date prior to October 26, 2012 for the grant of service connection for residuals of a traumatic brain injury is denied. Entitlement to an effective date prior to October 26, 2012 for the grant of service connection for a headache condition is denied. REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The July 2009 rating decision that denied service connection for residuals of a traumatic brain injury was based on the record and the law which existed at the time, and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. 2. In a July 2009 decision, the Regional Office denied the Veteran’s claim of entitlement to service connection for residuals of a traumatic brain injury. The Veteran was notified of the determination and did not perfect appellate review of the determination, and VA did not receive relevant new and material evidence within one year of the determination; thus, the decision is final. 3. The Veteran’s formal claim to reopen his previously denied claim of service connection for residuals of a traumatic brain injury was received by VA on October 26, 2012; this was the earliest statement received by VA expressing a desire or intention to seek such benefit that was further supported by the submission of new and material evidence, following the July 2009 prior final denial of a claim for the benefit. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying service connection for residuals of a traumatic brain injury was not clearly and unmistakably erroneous. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. 2. The criteria for an effective date earlier than October 26, 2012, for the grant of service connection for residuals of a traumatic brain injury have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. 3. The criteria for an effective date earlier than October 26, 2012, for the grant of service connection for a headache condition have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1997 to August 2005. He testified at an October 2019 videoconference hearing before the undersigned Veterans Law Judge; a copy of the transcript of that hearing is of record. The Board notes that the Agency of Original Jurisdiction (AOJ) addressed in both the August 2016 statement of the case as well as the May 2018 supplemental statement of the case the issue of whether there was CUE in the July 31, 2014 rating decision that assigned an effective date of October 26, 2012 for the grant of service connection for a headache condition and residuals of a traumatic brain injury. As will be discussed in further detail below, a claim of CUE is one that seeks revision of an unappealed and final adjudicatory decision; as such, since the July 31, 2014 rating decision is still on appeal, there can be no claim of CUE as to the effective dates assigned in that decision. Accordingly, the Board has no jurisdiction to adjudicate the claims of CUE as characterized by the AOJ in its prior decisions. That being said, the Board does acknowledge that the July 17, 2009 rating decision that originally denied service connection for residuals of a traumatic brain injury is an unappealed and final adjudicatory decision, and so can be subject to a CUE claim. Therefore, in order to provide broader consideration on appeal, the Board has recharacterized the Veteran’s CUE claim as one seeking a revision of the July 17, 2009 rating decision in which service connection for his traumatic brain injury residuals was originally denied. However, as there is no final and unappealed decision that bears on the headache condition claim currently on appeal, the Board will not entertain any CUE claim with regards to the headache condition. CUE As stated above, the Veteran’s claim seeking entitlement to service connection for residuals of a traumatic brain injury was denied in a rating decision dated July 17, 2009. The Veteran did not submit a notice of disagreement with this decision within one year, nor was any new relevant evidence associated with the claims file within one year of the decision. Thus, it became final, and may only be challenged on the basis of CUE. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006); 38 C.F.R. § 20.302. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; 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. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Furthermore, 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 a determination that there was CUE must be based on the record and law that exited at the time of the prior adjudication in question. Id. Simply to contend CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error,” meet the restrictive definition of CUE. See Fugo v. Brown, 6 Vet. App. 40 (1993). 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. More succinctly, CUE is an error which is undebatable. 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. Review for CUE in a prior decision is based on the record and law that existed when that decision was made. See Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43; Russell, 3 Vet. App. at 313-14. See also 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. Revision of a decision on the grounds of CUE is warranted only when there has been an error in the adjudication of the claim that, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See 38 C.F.R. § 20.1403(c) (pertaining to CUE in Board decisions). The following are examples of situations that are not CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in the decision; (2) the Secretary’s failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Upon review of the evidence available at the time of the July 2009 rating decision, the Board finds that revision of the July 2009 decision is not warranted. The Regional Office did not err in the application of the law or the statement of facts, and it cannot be said that reasonable minds could not differ such that the result would have been manifestly different. The Veteran contends that the evidence at the time of the July 2009 rating decision was essentially the same as was available at the time of the July 2014 rating decision that granted service connection for residuals of a traumatic brain injury; accordingly, the Veteran asserts that service connection should have been granted in the prior rating decision. As discussed by the Regional Office in the July 2009 decision, although the Veteran was diagnosed with residuals of a traumatic brain injury in 2008, the preponderance of the evidence of record was against a finding that the Veteran still had residuals that were attributable to an in-service traumatic brain injury or that he had residuals that were otherwise attributable to service. Specifically, the Regional Office relied on the opinion of the VA examiner who conducted a May 2009 traumatic brain injury examination and found that it was less likely than not that the traumatic brain injury residuals were attributable to service. In support thereof, the May 2009 examiner noted an inconsistent history of diagnosis of and treatment for residuals of a traumatic brain injury since service and referred to the contemporaneous MRI examination which did not show evidence of a traumatic brain injury. The Regional Office also noted that there was no history of diagnosis of or treatment for a traumatic brain injury while in service. There is no indication that the Regional Office erred in the application of the law or the facts in rendering the July 2009 decision. The Veteran’s assertion that the Regional Office ignored positive evidence tending to show that he had diagnosable traumatic brain injury residuals attributable to service overlooks the clear discussion by the Regional Office as well as the May 2009 examiner of VA and private treatment records showing an inconsistent pattern of diagnosis of traumatic brain injury residuals in the time following the Veteran’s discharge from service. Specifically, both the Regional Office and the May 2009 VA examiner noted the diagnosis of mild traumatic brain injury in an October 2008 consultation at the Veteran’s local VA medical center, and further noted that a Dr. W.O. in an October 2008 examination stated that the Veteran’s symptomatology suggested a history of head trauma; however, both the Regional Office and the May 2009 examiner also highlighted the May 2009 evaluation by a Dr. W.H., who attributed the Veteran’s neuropsychological impairment to his psychiatric disorder, not any history of traumatic brain injury. Therefore, the Board concludes that the Regional Office sufficiently reviewed the evidence of record, and the Veteran is essentially disagreeing with the Regional Office’s evaluation of the facts before it, which does not give rise to a finding of CUE. 38 C.F.R. § 20.1403(d). The Board finds that reasonable minds could disagree whether the July 2009 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. As such, the Board finds that the Veteran fails to establish factual or legal error rising to the level of CUE in the July 2009 rating decision that did not award service connection for residuals of a traumatic brain injury. Hence, the criteria have not been met for reversing or revising that prior decision on the basis of CUE, and the appeal is denied. Entitlement to an Earlier Effective Date The Veteran contends that he is entitled to an effective date earlier than October 26, 2012 for the award of service connection for a headache condition and for residuals of a traumatic brain injury. Service connection for both disabilities were granted in a July 2014 rating decision effective the date of the claim seeking to reopen the service connection claim for residuals of a traumatic brain injury, as the headache condition is considered secondary to the traumatic brain injury residual condition. For the reasons that follow, the Board finds that the Veteran’s earlier effective date claims must be denied. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101(a) provides that “[a] specific claim in the form prescribed by the Secretary... must be filed in order for benefits to be paid or furnished to any individual.” For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155 (a). It must “identify the benefit sought.” Id. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). On October 26, 2012, the Veteran filed his claim to reopen the previously denied claim seeking service connection for residuals of a traumatic brain injury. In a July 17, 2009 rating decision, the Veteran’s claim seeking entitlement to service connection for residuals of a traumatic brain injury was denied. He did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the July 2009 rating decision became final. No communication that can be interpreted as a request to reopen the denied service connection claim was received by VA until the Veteran submitted his formal claim seeking to reopen the previously denied claim. Following a review of the claims file, the Board finds that there is no basis upon which to find that the Veteran is entitled to an effective date earlier than October 26, 2012, for the grant of service connection for either residuals of a traumatic brain injury or a headache condition. VA was not in receipt of any new medical evidence pertinent to either service connection claim between July 17, 2009 and October 26, 2012, and there is no indication that VA could have obtained any such evidence but did not do so. There is also no evidence in the record indicating that the Veteran had submitted any intent to reopen his previously denied claim prior to the date of his formal claim. Accordingly, October 26, 2012, the date of the claim underlying both service connection grants at issue here, is the earliest date at which service connection may be effective; entitlement to an effective date earlier than that is not warranted, and the claims are denied. REASONS FOR REMAND Entitlement to service connection for bilateral hip and knee conditions are remanded. The claims for service connection for a right and left hip condition as well as a right and left knee condition are remanded. In Saunders v. Wilkie, 888 F.3d, 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Id. at 1364. “[A] physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity.” Id. at 1367. Ultimately, the Federal Circuit in Saunders held that, to establish the presence of a disability, a veteran will need to show that his or her pain reaches the level of functional impairment of earning capacity. Id. at 1368. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hip and knee conditions, because while the evidence does not show currently diagnosed disorders for these conditions, no VA examiner has opined whether the Veteran’s pain reaches the level of a functional impairment of earning capacity as per Saunders. The Veteran has provided lay evidence that indicates significant limitation of range of motion, as well as disruption of standard activities. Moreover, the claims file contains disability benefits questionnaires (DBQs) dated in April 2013 and prepared by a Dr. D.S. in which he endorsed diagnoses of early onset traumatic arthritis for both the bilateral hips and knees that he attributed to the Veteran’s history of parachuting while in service. This DBQ opinion, which was not addressed formally by the VA examiner in the May 2014 examination, provides further support for a determination that the Veteran does have diagnosable musculoskeletal conditions that account for his reported pain symptomatology in the bilateral hips and knees. Accordingly, the Board finds that a medical opinion on the potential for functional impairment is necessary before these issues can be determined. The Board also notes that during the October 2019 hearing, the Veteran asserted that he had submitted additional DBQs regarding the hip and knee conditions dated in October 2016 that were of record and which set forth new positive etiology opinions regarding diagnosable bilateral hip and knee conditions. The Board’s review of the claims file did not reflect that such DBQs were of record, however; as such, the Board requests that the Agency of Original Jurisdiction (AOJ) undergo a thorough file review to ensure that all submitted documents have been associated with the claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit and additional pertinent evidence regarding his treatment for any of the conditions at issue. To that end, the Veteran should also be invited to submit additional evidence in support of his claim, to include statements from friends and relatives. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Furthermore, regardless of how the Veteran responds, the RO must obtain and associate updated treatment records from any VA medical center at which the Veteran has sought treatment, pursuant to the provisions of 38 C.F.R. § 3.159(e). Additionally, the Board specifically requests that the Regional Office review the entire record to ensure that all submitted correspondence has been associated with the claims file, to especially include copies of Disability Benefits Questionnaires purportedly submitted in October 2016 regarding the claimed musculoskeletal conditions at issue, as per the Veteran’s testimony during the October 2019 hearing. All measures taken to comply with this directive should be recorded, and a memorandum of record should be associated with the claims file outlining said measures for the Board’s review. 2. Schedule the Veteran for a VA medical examination to address the nature and etiology of any diagnosed right and left hip and/or right and left knee conditions. The examiner must be provided access to the claims file and must specify in the report that the file has been reviewed. Following that review, the examiner must prepare an opinion addressing whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed right hip, left hip, right knee, or left knee disability began during active service or is related to any incident of service. The examiner must specifically discuss the service treatment records and the Veteran’s lay statements. The examiner must also specifically discuss whether the Veteran’s pain for any of the above listed issues reaches the level of a functional impairment of earning capacity. The examiner is advised that the Veteran as a lay person is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also specifically comment upon the diagnoses and positive etiology opinions contained in the April 2013 DBQs prepared by Dr. D.S. that are of record as well as any additional DBQs obtained by the AOJ during its file review. A complete and fully explanatory rationale must be provided for any opinion offered. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher Collins, 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.