Citation Nr: 20022449 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-11 188A DATE: March 31, 2020 ORDER Entitlement to an effective date earlier than July 22, 2004 for the grant of service connection for cervical strain on the basis of clear and unmistakable error (CUE) in the October 2004 rating decision is denied. Entitlement to an effective date earlier than August 12, 2004 for the grant of service connection for lumbar strain on the basis of CUE in the October 2004 rating decision is denied. The appeal as to the claim of entitlement to a higher initial rating for a cervical strain is dismissed. The appeal as to the claim of entitlement to a higher initial rating for a lumbar strain is dismissed. Entitlement to specially adapted housing is denied. Entitlement to a special home adaptation grant is denied. FINDINGS OF FACT 1. On October 23, 2001, the Veteran filed an informal claim for service connection for cervical strain. 2. The evidence demonstrates that the Veteran was first diagnosed with a neck disability following his separation from service on July 22, 2004. 3. On February 27, 2001, the Veteran initially submitted his informal claim for service connection for lumbar strain. 4. The evidence demonstrates that the Veteran was first diagnosed with a lumbar spine disability on August 12, 2004. 5. The October 2004 rating decision, which granted service connection for cervical strain, effective July 22, 2004, and lumbar strain, effective August 12, 2004, was not undebatably erroneous; and the record does not demonstrate that the correct facts, as they were known as of October 2004 rating, were not before the Regional Office (RO), or that the RO incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claims would have been manifestly different but for the error. 6. In a final June 2016 decision, the Board denied entitlement to an increased rating for a lumbar strain, denied an increased rating for a cervical strain prior to November 27, 2007, and granted an increased 20 percent rating for a cervical strain, effective November 27, 2007. 7. In the September 2016 rating decision, the Regional Office (RO) effectuated the Board’s June 2016 decision by granting an increased rating for the service-connected cervical spine disorder from 10 percent to 20 percent, effective November 27, 2007. 8. In the October 2016 rating decision, the RO, in pertinent part, effectuated the Board’s June 2016 decision by continuing the ratings for lumbar strain (10 percent prior to November 27, 2007 and 20 percent therefrom) and cervical strain (10 percent prior to July 25, 2007 and 20 percent therefrom). 9. The Veteran’s service-connected disabilities do not include or result in loss or loss of use of the lower extremities, blindness in both eyes, loss or loss of use of one lower extremity with residual organic disease or injury affecting balance or propulsion, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity affecting balance and propulsion, loss or loss of use of both upper extremities to preclude use of arms at or above the elbow, or full thickness or subdermal burns. 10. The Veteran’s service-connected disabilities do not result in blindness in both eyes with 5/200 visual acuity or less, involve the anatomical loss or loss of use of both hands, certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 22, 2004 for the grant of service connection for cervical strain on the basis of CUE in the October 2004 rating decision have not been met. 38 U.S.C. §§ 7105 (c), 7111; 38 C.F.R. §§ 3.105, 3.155(b), 3.303 (d), 3.400, 20.1400, 20.1403, 20.1404. 2. The criteria for an effective date earlier than August 12, 2004 for the grant of service connection for lumbar strain on the basis of CUE in the October 2004 rating decision have not been met. 38 U.S.C. §§ 7105 (c), 7111; 38 C.F.R. §§ 3.105, 3.155(b), 3.303 (d), 3.400, 20.1400, 20.1403, 20.1404. 3. The June 2016 Board decision is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 4. As the claims on appeal for higher ratings for cervical and lumbar strains had already been finally decided by the Board, there is no justiciable case or controversy as to those issues. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100(a). 5. The criteria for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 6. The criteria for a special home adaptation grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to June 1991. The Board notes that initially the issues on appeal included the issues of entitlement to an effective date earlier than September 22, 2004 for the 10 percent evaluations for cervical and lumbar strains, an effective date earlier than November 27, 2007 for the 20 percent evaluation for cervical strain, and an effective date earlier than July 25, 2007 for the 20 percent evaluation for lumbar strain. These issues were included on the May 2018 Statement of the Case (SOC) and January 2019 Supplement Statement of the Case (SSOC). However, these issues are encompassed by the increased rating claims on appeal because they consider the same periods of time. Consequently, the Board has recharacterized the issues as increased rating claims only. The Board also notes that, in August 2019, the Veteran submitted a VA Form 20-0995 and requested a supplemental claim, pursuant to the provisions of the Appeal Modernization Act (AMA). The Veteran did not select “Opt-in from SOC/SSOC.” Accordingly, VA will not opt-in the legacy issues from the prior SSOC to the AMA review system. The issues will instead be address below. In the October 2019 rating decision, the RO denied increased ratings for cervical radiculopathy of the left and right upper extremities, right foot metatarsalgia, left knee tendonitis, right elbow lateral epicondylitis, left and right lower extremity radiculopathy, tinnitus, sinus tarsi, right elbow limitation of flexion. The RO also denied entitlement to SMC for loss of use, denied service connection for obsessive compulsive depression, and declined to reopen the service connection for claims for benign prostatic hypertrophy, benign prostatic hyperplasia, chronic fatigue, abdominal pain, neurogenic bladder, skin dryness, costochondritis, dyslipidemia/ atherosclerotic abnormality, erectile dysfunction/painful erection, fibromyalgia, gastroesophageal reflux disease, left and right lower extremity greater trochanteric bursitis, hypersensitivity lung disease, lower urinary tract symptoms, normocytic hypochromic anemia, nose deformity, obstructive sleep apnea, occipital neuralgia, pulmonary tuberculosis, sinus bradycardia, sinusitis, upper respiratory infection, verruca palmaris, vertigo, and osteopenia on the basis that there was no new and relevant evidence. The Veteran appealed this rating decision and selected the Direct Review lane. As these issues are appealed under the AMA, they will be the subject of a separate Board decision. 1. Whether there was CUE in the October 2004 rating decision that assigned an effective date of July 22, 2004 for the grant of service connection for cervical strain and an effective date of August 12, 2004 for the grant of service connection for a lumbar strain. Where evidence establishes CUE, a prior final rating decision will be reversed or amended. See 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). “[CUE] is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). For CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error occurred based on the record and the law that existed at the time the prior decision was made; and (3) had the error not been made, the outcome would have been manifestly different Bouton v. Peake, 23 Vet. App. 70, 71 (2008). In other words, 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). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo, supra. Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE. Id. at 44. A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The Veteran contends that there was CUE in the unappealed October 2004 rating decision with respect to the July 22, 2004 effective date assigned for the grant of service connection for a cervical strain and the August 12, 2004 effective date assigned for the grant of service connection for a lumbar strain. See February 2016 Statement in Support of Claim. Specifically, he alleges that an earlier effective date is warranted because these disabilities were initially diagnosed in the military. Id. Nevertheless, upon review of the evidence, the Board finds that the evidence of record fails to show a CUE in the October 2004 rating decision with regard to the assignment of effective dates for grants of service-connection for cervical and lumbar strains. The statutory and regulatory provisions in effect at the time of the October 2004 rating decision provide that, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In this case, the initial claim for service connection for a cervical strain was received October 23, 2001 (the date the Veteran first filed his informal claim). See October 2001 Statement in Support of Claim. The initial date of claim for service connection for lumbar strain was received February 27, 2001 (the date the Veteran first filed his informal claim). See February 2001 Statement in Support of Claim. Thus, the remaining question for the Board is whether the RO was incorrect to find that the effective date for the awards of service connection should be assigned from the date entitlement arose, because it was later, rather than the date of claim. The Board emphasizes that the date entitlement arose is the date the criteria for service connection have been met. To establish service connection, there must be (1) medical evidence of a current disability; (2) a link, established by medical evidence, between a veteran's present disability and an in-service injury or event; and (3) credible supporting evidence that the claimed in-service injury or event occurred. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the evidence shows that the Veteran met the criteria for service connection for a cervical strain as of July 22, 2004 and for a lumbar strain as of August 12, 2004, the date he had current disabilities of the neck and back. In pertinent part, of record at the time of the October 2004 rating decision were treatment records and VA examination reports that showed the Veteran was first diagnosed with a cervical spine disability, i.e., a cervical spine strain, on July 22, 2004. See July 2004 VA Treatment records. The Veteran was also first diagnosed with a lumbar disability, i.e., back strain, during the August 12, 2004 VA examination. Although the Veteran’s VA treatment records reflect evidence of neck pain prior to July 2004 and back pain prior to August 2004, this evidence does not otherwise show a diagnosis/disability that meets the criteria for an award of service connection. The Board acknowledges that in Saunders v. Wilkie, it was more recently clarified that pain alone may constitute a disability if it causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, at the time of the October 2004 rating decision, this was not the case. For example, in an April 2003 VA treatment record, it was noted that although the Veteran had pain in the cervicothoracic area that limited his activities, he was still able to play basketball once a week. He was also encouraged to play golf and had plans to attend school. See, e.g., VA treatment records dated December 2002 and March 2003. Consequently, the Board finds that the RO was not incorrect to find that the Veteran’s July 22, 2004 diagnosis for a cervical strain and August 12, 2004 diagnosis for a lumbar strain is the earliest evidence that establishes current disabilities for the cervical and lumbar spines and the earliest dates on which entitlement may arise for these disorders. As previously indicated, the effective date under § 3.400 is the latter of the date of claim or the date entitlement arose. In this case, entitlement arose for a cervical strain on July 22, 2004, after his October 23, 2001 date of claim. Entitlement also arose for his lumbar strain on August 12, 2004, after his February 27, 2001 date of claim. The Board acknowledges the Veteran’s argument that there was CUE in the October 2004 rating decision because these disorders began during active duty service. However, the record reflects that the Veteran’s service treatment records were reviewed and considered. Specifically, in an August 2002 rating decision that denied service connection for cervical and lumbar spine disabilities, it was stated that although the record showed the Veteran was treated for a neck strain in 1989 (during service), he had not submitted any evidence of a current disability related to the neck or back. The Veteran appealed this rating decision and, ultimately, he was awarded service connection in the October 2004 rating decision once current disabilities for the cervical and lumbar spines were diagnosed. The Board emphasizes that even though the Veteran may have had a neck and/or back injury in service, service connection requires that, in addition to an in-service incident/injury, a current diagnosis/disability must exist. As noted above, the evidence does not establish that the current disability prong for entitlement to service connection for cervical and lumbar strains were met until July 22, 2004 and August 12, 2004, respectively. Based on the foregoing, the Board cannot conclude that the evidence undebatably established that an effective date earlier than July 22, 2004 for the grant of service connection for cervical strain and/or an effective date earlier than August 12, 2004 for the grant of service connection for lumbar strain was warranted. Additionally, there is no evidence the RO failed to correctly apply 38 C.F.R. § 3.400 in the October 2004 rating decision. The Veteran’s contentions in this matter are tantamount to a disagreement with how the RO evaluated the facts; this is not sufficient to raise a valid claim of CUE. As such, the October 2004 rating decision was supportable under the law in effect at the time. 2. Entitlement to higher ratings for cervical and lumbar strains are dismissed. By way of background, in a June 2016 decision, the Board, in pertinent part, denied a higher rating for lumbar strain (for all staged periods); denied a higher rating for a cervical strain prior to November 27, 2007; and granted a higher rating for a cervical strain from November 27, 2007. Thereafter, in the September 2016 rating decision, the RO effectuated the Board’s June 2016 decision by granting an increased rating for the service-connected cervical spine disorder from 10 percent to 20 percent, effective November 27, 2007. The RO also issued an October 2016 rating decision that denied entitlement to an earlier effective date for service connection for cervical and lumbar strains on the basis of CUE and essentially effectuated the Board’s June 2016 decision by continuing the ratings for lumbar (10 percent prior to November 27, 2007 and 20 percent therefrom) and cervical strains (10 percent prior to July 25, 2007 and 20 percent therefrom). The Veteran timely appealed these rating decisions and in his January 2017 Notice of Disagreement (NOD), he indicated that he wanted to appeal the ratings and effective dates for lumbar and cervical strain disorders. In response, the RO issued a January 2018 SOC that denied entitlement to effective dates earlier than September 22, 2004 for the 10 percent evaluations for cervical and lumbar strains, an effective date earlier than November 27, 2007 for the 20 percent evaluation for cervical strain, an effective date earlier than July 25, 2007 for the 20 percent evaluation for lumbar strain, and higher ratings for cervical and lumbar strains. The Veteran filed a timely substantive appeal, VA Form 9, to this SOC. [As noted above, these effective date claims have been merged with the increased rating claims]. Although the RO continued the increased rating claims for the Veteran’s lumbar and cervical strains on appeal, these issues were the subject of the Board’s final June 2016 decision and to allow a continuation of the appeal for these issues would obviate the finality of the Board’s decision that adjudicated these issues. This is because a Board decision becomes final when issued, unless the case is further appealed to the United States Court of Appeals for Veterans Claims (Court) or a motion for reconsideration is granted. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. In this case, the Veteran neither appealed the Board’s June 2016 decision to the Court nor did he file a motion for reconsideration of that decision. Accordingly, as the issues of increased ratings for cervical and lumbar strains were already finally decided by the Board, there is no justiciable case or controversy as to these issues. Consequently, the Board does not have jurisdiction over such issues and the appeals must be dismissed. 3. Entitlement to specially adapted housing. A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected disability due to (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus, the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) the loss, or loss of use, of both upper extremities such as to preclude use of the arms at or above the elbow; and (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. To “preclude locomotion” means that the disability in question requires the need for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). Initially, the Board notes that the Veteran has a current permanent and total disability rating. Service connection is in effect for schizophrenia, paranoid type, (100 percent); cervical strain (20 percent from November 27, 2007 to November 14, 2018 and 30 percent therefrom); lumbar strain (rated 20 percent); cervical radiculopathy left upper extremity (20 percent); cervical radiculopathy right upper extremity (20 percent); lateral epicondylitis, right elbow with painful motion (10 percent); lumbar radiculopathy right lower extremity (10 percent), lumbar radiculopathy left lower extremity (10 percent), sinus tarsi (10 percent from April 16, 2019), and lateral epicondylitis, right elbow with limited flexion (0 percent). However, after review of the record, the Board finds that the criteria for specially adapted housing are not met. Although the Veteran is rated as permanently and totally disabled, none of the service-connected disabilities include or result in loss or loss of use of the lower extremities, blindness in both eyes, loss or loss of use of one lower extremity with residual organic disease or injury affecting balance or propulsion, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity affecting balance and propulsion, loss or loss of use of both upper extremities to preclude use of arms at or above the elbow, or full thickness or subdermal burns. The Board acknowledges the Veteran’s reports that he uses a walker occasionally for taking long walks and he appeared to require the use of a wheelchair during a recent hospital stay for a planned procedure. See November 2018 VA Examination report and March 2019 VA Treatment records. Significantly, however, there is no evidence that he required the regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion. Therefore, the award of assistance for specially adapted housing is denied. 4. Entitlement to a special home adaptation grant. Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity or less, or involves the anatomical loss or loss of use of both hands, or certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). (Continued on the next page)   The Board finds that the criteria for a special home adaptation grant are not met. Although the Veteran has permanent and total service-connected disability, his service-connected disabilities do not result in blindness in both eyes with 5/200 visual acuity or less, nor do they involve the anatomical loss or loss of use of both hands, certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. Notably, recent VA treatment records reflect that, despite bilateral upper extremity cervical radiculopathy, there is no baseline tingling, numbness, or weakness of the hands. See December 2018 VA Treatment records. Therefore, the criteria for a special home adaption grant are not met and the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, Associate 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.