Citation Nr: 21004969 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-29 471 DATE: January 28, 2021 ORDER The March 6, 2019 Board decision, having been found to be clearly and unmistakably erroneous in denying an effective date prior to June 1, 2016 for the award of service connection for hypertension, is revised to reflect an award of an effective date of June 15, 2015. FINDINGS OF FACT 1. In a final decision dated March 6, 2019, the Board denied entitlement to an effective date prior to June 1, 2016 for the award of service connection for hypertension. 2. The March 6, 2019 Board decision contained legal and factual errors in denying an effective date prior to June 1, 2016 for the award of service connection for hypertension. 3. But for the legal and factual errors in the March 6, 2019 Board decision, the outcome would have been manifestly different and an effective date of June 15, 2015 for the award of service connection for hypertension would have been granted. CONCLUSION OF LAW The March 6, 2019 Board decision denying entitlement to an effective date prior to June 1, 2016 for the award of service connection for hypertension was clearly and unmistakably erroneous, and is revised to assign an effective date of June 15, 2015. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2005 to October 2011. This matter is currently before the Board on the Board’s own September 2020 motion for revision or reversal on the grounds of CUE in the March 6, 2019 Board decision that, in pertinent part, denied entitlement to an effective date prior to June 1, 2016 for the award of service connection for hypertension. Clear and Unmistakable Error A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). 38 U.S.C. § 7111(a). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c); 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. 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 Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, 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. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In the present case, the Board, on its own motion, alleges CUE in a March 6, 2019, Board decision that denied an effective date prior to June 1, 2016 for the award of service connection for hypertension. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b) (2018). The pertinent laws and regulations at the time of this decision were the same as they are now. The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a);38 C.F.R. § 3.400. To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). The facts in this matter are as follows. On June 15, 2015, the Veteran submitted an “intent to file.” See June 15, 2015 letter to Veteran (indicating that he filed an “intent to file” on June 15, 2015). Thereafter, his formal claim for service connection for hypertension was received by VA on June 1, 2016. See June 2016 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. In a September 2016 rating decision, the RO granted service connection for hypertension, and assigned an effective date of June 1, 2016. The Veteran appealed the effective date assigned for the award of service connection for hypertension. In a March 6, 2019, decision, the Board denied the Veteran’s appeal as to the effective date assigned for the award of service connection for hypertension. Thus, the Board made errors of fact and law in the March 6, 2019, decision by denying an effective date prior to June 1, 2016 for the award of service connection for hypertension. Here, it is clear and unmistakable that the Veteran filed an “intent to file” on June 15, 2015. While the actual “intent to file” form is not in the claims file, the RO’s June 15, 2015 letter to the Veteran acknowledging the receipt of the June 15, 2015 “intent to file” is clear and unmistakable evidence that such form was filed on that date. In addition, there is no requirement that the intent to file form identify the specific disability that will be claimed. 38 C.F.R. § 3.155(b). Thus, the generic “intent to file” form will preserve an earlier effective date for any formal claim for compensation received within one year of its filing. Id. Furthermore, it is clear and unmistakable that the Veteran filed a formal claim for service connection for hypertension on June 1, 2016, within one year of the date VA received the June 15, 2015 “intent to file.” Both of these documents were of record at the time of the March 2019 Board decision. Thus, the Board made errors of fact and law in denying an effective date prior to June 1, 2016, the date VA received the formal claim, for the award of service connection for hypertension. Thus, after considering the evidence of record at the time of the March 6, 2019, Board decision, the Board finds clear and unmistakable legal error in the Board’s March 6, 2019, decision that denied an effective date prior to June 1, 2016 for the award of service connection for hypertension, as the statutory and regulatory provisions extant at the time were not applied. Moreover, had the legal error discussed above not been committed, the outcome of the March 2019 Board decision would have been manifestly different, i.e. an effective date of June 15, 2015 would have been assigned for the award of service connection for hypertension as the Veteran clearly and unmistakably filed an “intent to file” on that date and subsequently filed a formal claim for service connection for hypertension within in one year, on June 1, 2016. In sum, Board decision is clearly and unmistakably erroneous; therefore, the March 6, 2019, Board decision should be revised, resulting in an award of an effective date of June 15, 2015, for the award of service connection for hypertension. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1402-1404. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.