Citation Nr: 21065508 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 21-00 588 DATE: October 26, 2021 ORDER The May 2021 motion to revise a June 14, 2019, decision of the Board of Veterans' Appeals (Board) on the basis of clear and unmistakable error (CUE) is denied. FINDING OF FACT The June 2019 decision of the Board dismissing an appeal of the effective date of service connection for posttraumatic stress disorder (PTSD) stated that that appeal did not arise from the initial assignment of an effective date for service connection for PTSD and represented a freestanding earlier effective date claim which is not permitted under law and the May 2021 motion does not challenge this determination. CONCLUSION OF LAW The June 2019 Board decision, in dismissing any appeal regarding the effective date for the grant of service connection for PTSD, did not contain a clear and unmistakable error and the criteria for revision or reversal of that decision have not been met. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-04. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the moving party, served honorably on active duty in the United States Marine Corps from May 1968 to March 1972. This matter comes before the Board from the Veteran's motion to revise a June 2019 decision of the Board on the basis of CUE. Legal Standard A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the 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 a court of competent jurisdiction and decisions on issues which have subsequently been decided by such a court. 38 C.F.R. § 20.1400. The motion to revise a prior final Board decision 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). 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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). Analysis As an initial matter, the Board finds that the May 2021 motion to revise the June 2019 Board decision satisfies the procedural requirements for a CUE motion set forth at 38 C.F.R. §§ 20.1404(a) and 20.1404(b). As such, the Board will turn to the merits of that motion. At the outset, the Board finds it useful to describe the circumstances surrounding the grant of service connection for PTSD, the effective date for which lies at the heart of the May 2021 motion. While the motion spends a considerable portion of its length on arguments that a claim for service connection for PTSD had been pending for decades, VA did not grant service connection for this disability until it issued a July 2007 decision in which it granted service connection effective July 2006. The Veteran then requested in a January 2008 statement that compensation for this disability be retroactive to 1983. A VA Regional Office then issued a March 2008 decision in which it denied an earlier effective date for service connection for PTSD. That decision also addressed the issues of an increased disability rating for PTSD, an increased disability rating for tinnitus, a total disability rating based on individual unemployability (TDIU), and service connection for multiple myeloma. The Veteran did submit a notice of disagreement relating to the March 2008 decision in May 2008, but this notice of disagreement did not address the adjudicated issue of entitlement to an earlier effective date for the grant of service connection for PTSD. No other statement was received by VA in the year following his notification of the March 2008 decision that could be considered a notice of disagreement regarding the effective date issue or which could be considered new and material evidence with respect to this issue that could toll the finality of the decision. As such, the June 2019 Board decision essentially determined that it became final. 38 C.F.R. § 3.160(d)(1). Although the regulations regarding the finality of a VA Regional Office legacy rating decision have been redesignated at different sections in the Code of Federal Regulations upon the implementation of the Appeals Modernization Act (AMA), the substantive requirement that a claimant submit a notice of disagreement to a legacy decision within a year of notice of the decision has not changed. The claim that led to the June 2019 Board decision that is the subject of the instant motion was submitted in October 2015, at which time the Veteran requested an earlier effective date of service connection for PTSD retroactive to 1982 to 1983. A VA Regional Office issued a decision denying his request, and the Veteran perfected his appeal to the Board in May 2018. The Board ultimately issued a decision on the appeal regarding the effective date of the grant of service connection for PTSD in June 2019. Initially, the Board explained that the appeal was "denied," but the Board ultimately stated in the end of its analysis that the appeal must be dismissed as a matter of law. In its decision, the Board did briefly address the substance of the Veteran's arguments regarding the existence of a pending claim relating to service connection for PTSD well before the 2006 effective date currently in effect. However, the primary basis for the Board's dismissal of the Veteran's claim was the fact that it determined that the October 2015 claim represented a freestanding earlier effective date claim for the grant of service connection. Fatal to the matter at hand, the May 2021 motion does not substantially address this key finding of the June 2019 Board decision. In its law and argument section, the motion phrases the first question as whether there was CUE either in the June 2019 Board decision or the underlying April 2018 statement of the case. Several cases were cited allegedly in support of the contention that the Board decision did contain CUE, including McGee v. Nicholson, 20 Vet. App. 472 (2006), Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, none of the cited cases specifically addressed the issue of the viability of a freestanding claim for an earlier effective date. The motion then stated that CUE was present because VA, and presumably the Board, failed to consider the evidence of psychological problems from 1983 VA treatment notes and that VA and the Board failed to adequately recognize that an informal claim was received in 1983. This section of argument then contends that the 1983 treatment records and other medical evidence from 1983 could serve as new and material evidence under 38 U.S.C. § 5108 to revise a decision and that the prior decision will be reversed or amended pursuant to 38 C.F.R. § 3.105(a). The Board observes that these arguments have no bearing on the question of whether the October 2015 claim represents a freestanding earlier effective date claim and do not suggest that new and material evidence was received within a year of the 2008 rating decision denying an earlier effective date that would toll its finality. The second and final question presented by the motion is whether the Veteran had established that he had filed an informal claim "under the CUE analysis," or alternatively for a motion for reconsideration. In this section, the motion cited a non-precedential decision of the United States Court of Appeals for Veterans Claims (Court) regarding the interplay between the doctrine of the benefit of the doubt and a determination as to whether a claim had been filed. This section then largely reiterated the contention that the medical evidence of record represented informal claims. Finally, this section disagreed with the characterization of evidence of the statement of the case and its failure to address the 1983 VA records that were contended to represent claims. As the Board noted in the June 2019 decision, the Court issued the decision of Rudd v. Nicholson, 20 Vet. App. 296 (2006) in which it held that if a claimant disagrees with the effective date assigned by a Regional Office decision, a timely appeal as to that effective date must be made. The only alternative manner to obtain an earlier effective date is to submit a motion to revise the VA Regional Office rating decision assigning the effective date on the basis of CUE. Outside of these two methods, the Court in Rudd found that there was no avenue for VA to consider a "freestanding" claim for an earlier effective date for the grant of service connection. This principle that a freestanding effective date claim is not permitted has been repeatedly reaffirmed by the Court and the United States Court of Appeals for the Federal Circuit. See e.g., Payne v. Wilkie, 31 Vet. App. 373, 394 (2019); Rice v. Shinseki, 22 Vet. App. 447, 457 (2009). In the case of a freestanding request for an earlier effective date, VA's claims processing rules do not permit it to consider the claim, as to do so would violate the rule of finality and the proper action is to dismiss the claim. Rudd, 20 Vet. App. at 300. The May 2021 motion does not contend that the March 2008 decision that addressed the issue of an earlier effective date for service connection for PTSD was not final. It also does not challenge the June 2019 Board decision's determination that the October 2015 claim represented a freestanding claim for an earlier effective date. In light of this threshold matter, the Board is unable to state that any potentially otherwise meritorious argument with respect to whether a preexisting pending claim was received would have any effect whatsoever on the outcome of the June 2019 decision. Dismissal was the only option available to the Board in light of its unchallenged determination that a freestanding earlier effective date claim was on appeal. Accordingly, the May 2021 motion did not identify a clear and unmistakable error in the June 2019 decision and the motion must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.