Citation Nr: 20023045 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 18-25 025 DATE: April 2, 2020 ORDER Entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder, including based on an allegation of clear and unmistakable error (CUE) in a May 2005 Board of Veterans’ Appeals (Board) decision, is dismissed. FINDINGS OF FACT 1. The record evidence shows that the Board denied the Veteran’s claim of service connection for major depressive disorder in a May 2005 decision; this decision was not appealed and became final. 2. The record evidence shows that, in statements on a VA Form 21-4138 dated on July 5, 2006, and date-stamped as received by the Agency of Original Jurisdiction (AOJ) on July 12, 2006, the Veteran essentially requested that his previously denied service connection claim for major depressive disorder be reopened. 3. The record evidence shows that, in a rating decision dated on August 27, 2009, and issued to the Veteran and his service representative on September 1, 2009, the AOJ reopened and granted, in pertinent part, the claim of service connection for major depressive disorder, assigning a 100 percent rating effective July 12, 2006; this decision also was not appealed and became final. 4. The record evidence shows that the Veteran submitted medical records to VA which were date-stamped as received electronically on January 20, 2015; the AOJ interpreted submission of these records as a claim of entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder. 5. The record evidence shows that, in the currently appealed rating decision issued in June 2015, the AOJ denied the Veteran’s claim of entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder. 6. The record evidence shows that, in statements made on the record at the January 2020 Board hearing, the Veteran, through his representative, asserted that the May 2005 Board decision was the product of CUE. CONCLUSION OF LAW The claim of entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder, including based on an allegation of CUE in a May 2005 Board decision, is dismissed as a matter of law. 38 U.S.C. §§ 7104, 7266 (2012); 38 C.F.R. § 20.1100 (2019); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1982 to December 1992, including in the southwest Asia theater of operations during the Persian Gulf War. In a May 2005 decision, the Board denied a claim of service connection for major depressive disorder. This decision was not appealed and became final. See 38 U.S.C. §§ 7104, 7266 (2012). As is explained below in greater detail, to the extent that the Veteran is attempting to disturb the finality of the May 2005 Board decision by filing the currently appealed claim for an earlier effective date for the grant of service connection for major depressive disorder, this claim must be dismissed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting a collateral attack on a final rating action by filing a freestanding earlier effective date claim). To the extent that the Veteran is asserting entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder on the basis of an allegation of CUE in a May 2005 Board decision, it is noted that, in general, previous determinations which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 20.1100. To establish a valid CUE claim, an appellant 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 (1992). The Court has stressed consistently the rigorous nature of the concept of CUE. Clear and unmistakable error 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). Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could conclude only that the original decision was fatally flawed at the time it was made. See Russell, 3 Vet. App. at 313-4. It always must be remembered that CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-prong test to determine whether CUE is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. To establish a valid claim of CUE, the claimant must demonstrate that either the correct facts, as they were known at the time, were not before the adjudicator, or that statutory or regulatory provisions extant at the time were applied incorrectly. Daniels v. Gober, 10 Vet. App. 474 (1997). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be 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. 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 CUE. Allegations that previous adjudications had weighed and evaluated the evidence improperly also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43 44. 1. Entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder The Board finds that the Veteran’s claim of entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder must be dismissed as a matter of law. In Rudd, 20 Vet. App. at 296, the Court held that Veterans are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. As noted above, the Board denied the Veteran’s service connection claim for major depressive disorder in a May 2005 decision which was not appealed to the Court. See 38 U.S.C. §§ 7104, 7266 (2012). The next relevant correspondence occurred when the Veteran essentially requested that his previously denied service connection claim for major depressive disorder be reopened in statements on a VA Form 21-4138 dated on July 5, 2006, and date-stamped as received by the Agency of Original Jurisdiction (AOJ) on July 12, 2006. In a rating decision dated on August 27, 2009 and issued to the Veteran and his service representative on September 1, 2009, the AOJ granted, in pertinent part, a claim of service connection for major depressive disorder, assigning a 100 percent rating effective July 12, 2006. The AOJ concluded that July 12, 2006, was an appropriate effective date for the grant of service connection for major depressive disorder because that was the date that VA received the Veteran’s reopened claim. This decision also was not appealed and became final. See 38 U.S.C. § 7104 (2012). The Veteran further did not submit any relevant evidence or argument within 1 year of the August 2009 rating decision which would render it non-final for VA adjudication purposes. See also Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The next relevant correspondence occurred when the Veteran submitted medical records to VA which were date-stamped as received electronically on January 20, 2015. The AOJ interpreted submission of these records as a claim of entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder. In the currently appealed rating decision issued in June 2015, the AOJ denied the Veteran’s claim of entitlement to an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder. The AOJ essentially concluded that an earlier effective date was not warranted because July 12, 2006, was the date that VA received the Veteran’s successfully reopened claim. In statements on a VA Form 21-0958, “Notice Of Disagreement,” date-stamped as received by VA on October 26, 2015, the Veteran disagreed with the denial of his earlier effective date claim in the June 2015 rating decision. Although his argument is not a model of clarity, it appears that he contends on this form that the appropriate effective date for a grant of service connection for major depressive disorder is some time during the year 2000. The Veteran essentially testified at a March 2018 Decision Review Officer (DRO) hearing that the appropriate effective date for a grant of service connection for major depressive disorder is June 2000 when he allegedly sought treatment for this disability. In statements made on the record at the January 2020 Board hearing, the Veteran, through his representative, asserted – for the first time – that the May 2005 Board decision was the product of CUE. The Veteran and his representative specifically asserted that the Board committed CUE in the May 2005 decision by relying on an inadequate or insufficient VA examination to deny the Veteran’s service connection claim for major depressive disorder. See Board hearing transcript dated January 29, 2020, at pp. 3 4. The Board finds that its May 2005 decision, which denied the Veteran’s original service connection claim for major depressive disorder, cannot be collaterally attacked by filing a freestanding earlier effective date claim. The Board similarly finds that the August 2009 rating decision, which granted the Veteran’s successfully reopened service connection claim for major depressive disorder and assigned a 100 percent rating effective July 12, 2006, also cannot be collaterally attacked by filing a freestanding earlier effective date claim. As such, the Board cannot adjudicate the Veteran’s claim for an earlier effective date than July 12, 2006, for a grant of service connection for major depressive disorder without violating the Court’s express prohibition against freestanding earlier effective date claims found in Rudd. See Rudd, 20 Vet. App. at 296. Therefore, there is no legal entitlement to an effective date earlier than July 12, 2006, for the grant of service connection for major depressive disorder and this claim must be dismissed. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finally notes that, to the extent that the Veteran’s earlier effective date claim is based on an allegation of CUE in its May 2005 decision, he cannot bootstrap a CUE claim impermissibly on to the procedurally deficient earlier effective date claim. The Veteran’s earlier effective date claim is deficient procedurally because it cannot be used to collaterally attack a prior final Board decision in May 2005 and a prior final rating decision in August 2009 and must be dismissed under Rudd. Thus, the Veteran cannot rely on this procedurally deficient claim in order to get a vague and unsubstantiated CUE claim adjudicated by the Board. In arguing that the Board allegedly committed CUE in the May 2005 decision, the Veteran and his representative essentially disagree with how the Board weighed the facts concerning the contended etiological relationship between major depressive disorder and active service in this decision. The Board observes in this regard that mere disagreement with the weighing of facts by the adjudicator can never rise to the level of a valid CUE claim. See Luallen, 8 Vet. App. at 96, and Fugo, 6 Vet. App. at 43-44. In summary, by relying on the mere assertion of CUE in a prior Board decision issued in May 2005 and disagreeing with how the Board weighed the facts in this decision, the Veteran’s CUE claim also cannot be granted as a matter of law. See Sabonis, 6 Vet. App. at 426. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.