Citation Nr: 20052900 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 18-48 876 DATE: August 10, 2020 ORDER Entitlement to an effective date of service connection prior to February 28, 2007 for asthma with bronchitis is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for asthma with bronchitis is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for diverticulitis is remanded. FINDINGS OF FACT 1. An August 2011 rating decision granted service connection for asthma, effective February 28, 2007; VA did not receive a notice of disagreement or new and material evidence regarding the effective date of service connection for asthma within one year of notice of the August 2011 rating decision. 2. A July 2013 rating decision granted service connection for bronchitis, effective February 28, 2007; VA did not receive a notice of disagreement or new and material evidence regarding the effective date of service connection for bronchitis within one year of notice of the July 2013 rating decision. CONCLUSION OF LAW The criteria for dismissal of the issue of entitlement to an effective date of service connection prior to February 28, 2007 for asthma with bronchitis have been met. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 C.F.R. §§ 3.104, 20.101, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran’s December 2016 notice of disagreement regarding the September 2016 rating decision that led to the present appeal raised the issue of the effective date of service connection for “asthma with bronchitis.” Although the Agency of Original Jurisdiction (AOJ) included the issue of “an earlier effective date for asthma with bronchitis” in its August 2018 statement of the case for the present appeal, the Board finds it does not have jurisdiction to review the effective date of service connection for asthma with bronchitis in the context of this appeal. An August 2011 rating decision granted service connection for asthma, effective February 28, 2007. A July 2013 rating decision granted service connection for bronchitis, effective February 28, 2007, combining it with asthma for rating purposes since the VA Rating Schedule prohibits separate ratings for bronchitis (Diagnostic Code 6600) and asthma (Diagnostic Code 6602). See 38 C.F.R. § 4.96 (indicating separate ratings cannot be assigned for coexisting respiratory conditions listed in diagnostic codes 6600 through 6817 and 6822 through 6847). VA did not receive a notice of disagreement or new and material evidence regarding the effective date of service connection for either asthma or bronchitis within one year of notice of either the August 2011 rating decision or the July 2013 rating decision. The Board acknowledges the Veteran submitted new and material evidence regarding the rating assigned for the disability within the appeal periods of the decisions, but he did not raise the issue of the effective date of service connection until he submitted a September 2014 written statement that asserts the effective date of service connection for bronchitis should predate the effective date of service connection for asthma because he sought service connection for bronchitis prior to asthma and because individuals “normally contact bronchitis before asthma”; however, the September 2014 written statement was received after the appeal period for either the August 2011 rating decision or the July 2013 rating decision, rendering them final with respect to issue of the effective date of service connection. Once a decision that establishes an effective date becomes final, the only way that such decision can be revised is if it contains clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Court of Appeals for Veterans Claims (Court) has noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that an appeal of the claim should be dismissed. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). As a result, the Board must dismiss the issue of an earlier effective date of service connection for asthma with bronchitis because it did not arise from an appeal of either the August 2011 rating decision or the July 2013 rating decision. As previously noted, the only exception to the rule of finality is CUE in a prior decision. Under 38 C.F.R. § 3.105(a), VA must reverse or amend a prior decision “[w]here evidence establishes [CUE].” The Court defines a determination of CUE in a prior adjudication to mean that: (1) “[e]ither 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,” (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 the law that existed at the time of the prior . . . decision.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). When attempting to raise a motion for 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 v. Brown, 6 Vet. App. 40, 43 (1993). “In order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. Id.; see Damrel v. Brown, 6 Vet. App. 242, 245-46 (1994). If CUE is not properly raised, the Board cannot consider CUE as a basis for an earlier effective in its adjudication. Russell, 3 Vet. App. at 313; Fugo, 6 Vet. App. at 43. Here, the Veteran has not properly raised the issue of CUE in a prior decision, and this issue was not adjudicated by the AOJ. The Board acknowledges the Veteran used the word “error” in his September 2014 written statement, but this does not identify a specific rating decision or provide persuasive reasons as to why the result of any decision would have been manifestly different but for the alleged error. Thus, the Board is prohibited from considering CUE in the context of this appeal. The Veteran remains free to challenge any prior decision on the basis of CUE by filing an appropriate request with the AOJ, but the Board must dismiss the issue of entitlement to an earlier effective date of service connection prior to February 28, 2007 for asthma with bronchitis because it does not have jurisdiction to review it. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (the Board and thus the Court lack jurisdiction to address a CUE motion in the first instance). REASONS FOR REMAND 1. Entitlement to rating in excess of 30 percent for asthma with bronchitis is remanded. The Board finds the Veteran’s most recent respiratory conditions examination in May 2016 is inadequate for rating purposes because the examiner conceded he did not review the Veteran’s medical records as part of the examination. Accordingly, remand for a new VA examination is warranted. 2. Entitlement to service connection for chronic kidney disease is remanded. In a December 2016 statement, the Veteran reported he receives treatment for his kidney condition at a private provider named “The Renal Associates”; however, it does not appear any efforts have been made to associate these private treatment records with the claims file. Thus, remand is warranted to ensure compliance with VA’s duty to assist. 3. Entitlement to service connection for left knee disability is remanded. VA treatment records establish the Veteran has a left knee disability. A March 1967 service treatment record shows the Veteran had a knee x-ray following an injury playing football. The March 1967 service treatment record does not specifically indicate which knee was examined at that time, but it nevertheless raises the possibility that the claimed left knee disability may be the result of an in-service disease or injury. As there is an indication that the Veteran’s left knee disability may be related to service, an examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). 4. Entitlement to service connection for COPD is remanded. A March 2001 VA examination reflects x-ray evidence that the Veteran had COPD. The Veteran has a well-documented history of respiratory issues in service and since his separation from service, to include two service-connected respiratory disabilities; however, VA has not provided an examination or obtained an opinion regarding his service connection claim for COPD. As there is an indication that the Veteran’s COPD may be related to service, an examination is necessary. See McLendon, supra. 5. Entitlement to service connection for diverticulitis is remanded. The Veteran submitted an August 2004 private treatment record reflecting a diagnosis of diverticulitis of the colon. In December 2004, the Veteran reported he was treated for upset stomach while in service. This statement is corroborated by the Veteran’s service treatment records, which reflect that he suffered from gastrointestinal issues while in service. Yet, VA has not provided an examination or obtained an opinion regarding the Veteran’s service connection claim for diverticulitis. As there is an indication that the Veteran’s diverticulitis may be related to service, an examination is necessary to ensure compliance with VA’s duty to assist. See McLendon, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, if an in-person examination is not feasible), preferably with a clinician who has not previously examined the Veteran, to determine the current severity of his service-connected asthma with bronchitis. The examiner must review the Veteran’s claims file as part of the examination. 2. Ask the Veteran to identify any private treatment that he may have had for his kidney condition that is not already of record, particularly treatment from The Renal Associates. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can attempt to obtain those records on his own behalf. 3. Obtain an opinion to determine whether the Veteran’s left knee disability, COPD, and diverticulitis are related to his military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability, COPD, and diverticulitis began in or were otherwise caused by the Veteran’s active service. For COPD, the opinion must also address whether the claimed disability is at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, the Veteran’s service-connected asthma with bronchitis. The opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran’s history of symptoms capable of lay observation solely on the basis that they are not recorded in contemporaneous treatment records.  All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.