Citation Nr: A21017085 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 210105-128999 DATE: October 21, 2021 ORDER The issue of entitlement to an effective date earlier than February 11, 1992, for the award of service connection for status post trigeminal nerve injury with residual dysesthesias and pain, including on the basis of clear and unmistakable error, is dismissed. FINDING OF FACT The Veteran has not pled with the requisite specificity a claim for clear and unmistakable error as to a prior VA decision. CONCLUSION OF LAW The criteria for dismissal of the issue of entitlement to an effective date earlier than February 11, 1992, for the award of service connection for status post trigeminal nerve injury with residual dysesthesias and pain, including on the basis of clear and unmistakable error have been met. 38 U.S.C. § 7105; 38 C.F.R. § 3.104; 3.105(a)(vii)(A), 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to June 1967. The rating decision on appeal was issued in December 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Initially, the Board addresses the timeliness of the VA Form 10182. The rating decision on appeal was issued December 28, 2019, and the notice letter was dated December 31, 2019. The VA Form 10182 (i.e. the Notice of Disagreement) was received on January 5, 2021, according to the date identified by VA's evidence intake center. However, the Veteran signed the Form 10182 on December 12, 2020, and the letter received by VA is postmarked December 14, 2020. VA regulations provide that a claimant, or his or her representative, must file a properly completed Notice of Disagreement (NOD) with a decision by the agency of original jurisdiction within one year from the date that the agency mails the notice of the decision. 38 C.F.R. § 20.203 (2020). The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. VA regulations further prescribe that the date of mailing is not included in the one-year period, and that where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 3.110 (2020). In this case, the one-year period for filing the NOD would normally expire on January 1, 2021. Since this was a holiday, and January 2nd and 3rd were a Saturday and Sunday, the deadline for filing became January 4, 2021. As the Veteran's NOD was received on January 5, 2021, it technically is considered untimely. However, under 38 C.F.R. § 20.203, an extension of the one-year time limit may be granted for good cause. In that regard, the Board takes judicial notice of the significant delays in mailing letters and parcels during the December 2020 time period by the United States Postal Service. The Board finds this to be a good cause exception to extend the one-year filing deadline by one day. The issue of entitlement to an effective date earlier than February 11, 1992, for the award of service connection for status post trigeminal nerve injury with residual dysesthesias and pain, including on the basis of clear and unmistakable error. The Veteran seeks an earlier effective date for the award of service connection for his status post trigeminal nerve injury with residual dysesthesias and pain (hereafter, facial nerve disability). In his December 2019 claim and statement in support thereof, the Veteran asserted that there was clear and unmistakable error (CUE) in the effective date for the status post trigeminal nerve injury. He explained that the trigeminal nerve injury was granted on February 11, 1992. He pointed to having a diagnosis of hypesthesia of left temporal skin area, which is the same disability, on June 29, 1967. He asserts that the clinical record showing this was originally overlooked by VA. He requested a retroactive grant of entitlement to this benefit based on a clear and unmistakable error. In a January 2020 correspondence, the Veteran pointed to a 1987 VA examination report that was erroneously filed in the claims file of another veteran. In a January 2021 correspondence, the Veteran asserts that there was a December 30, 1998, appeal letter (i.e. Board decision) that clearly states that the service medical records indicate the Veteran complained of numbness. According to the Veteran, the December 1998 Board decision stated that, based upon a review of the Veteran's past history and neurological examination, the Veteran was diagnosed in June 1966 as having status post trigeminal nerve injury with residual dysesthesia and pain. In these correspondences, the Veteran asks for reconsideration of his claim. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. 38 U.S.C. § 7105. Generally, a Board decision is final in the absence of CUE unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, a December 1998 Board decision granted service connection for nerve damage of the face. A March 2000 rating decision implemented the Board's grant of service connection and assigned a 30 percent evaluation effective February 11, 1992. In March 2000, the Veteran appealed the assignment of the effective date, stating that the effective date should have gone back to August 1967. In January 2002, the Board denied an effective date earlier than February 11, 1992, for the grant of service connection for the facial nerve disability. The Chairman of the Board has not ordered reconsideration and the Veteran did not appeal the Board decision to the U. S. Court of Appeals for Veterans Claims. Thus, the January 2002 Board decision became final. 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100. In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court of Appeals for Veterans Claims (Court) held that once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court found that there is no valid freestanding claim for an earlier effective date. The Court held that if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. Accordingly, the Veteran cannot raise a freestanding claim of an earlier effective date in this case because the January 2002 Board decision became final. Nonetheless, the Veteran asserts that there is CUE in the assignment of the effective date. It is important to note that the Veteran does not identify in which decision he believes CUE is present. Possible decisions are the August 1967 initial rating decision, the March 2000 rating decision assigning the initial effective date, the January 2002 Board decision denying an earlier effective date, and the December 2011 rating decision denying CUE in the August 1967 rating decision. The regulatory provisions governing revision of prior final decisions based on CUE enumerate specific filing requirements for CUE motions. More specifically, a CUE motion must be in writing, signed by the requesting party or that party's authorized representative, and include the name of the claimant, the applicable VA file number, and the date of the decision to which the request relates. 38 C.F.R. § 3.105(a)(vii)(A). The request must also set forth clearly and specifically the alleged clear and unmistakable error, or errors, of factor or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 3.105(a)(vii)(B). Non-specific allegations of failure to follow regulations or failure to give due process, or other general, non-specific allegations, are insufficient to satisfying the filing requirements. Id. Assertions of CUE that fail to satisfy the pleading requirements should be dismissed without prejudice to refiling. Simmons v. Principi, 17 Vet. App. 104, 113-14 (2003). In this case, the Veteran has not identified the threshold matter of the date of the decision to which his CUE claim relates. In his December 2019 VA Form 21-526EZ, Fully Developed Claim, the Veteran asserts "CUE effective date status post trigeminal nerve injury." He notes he was submitting a clinical record and identified the date the disability began as June 18, 1966. The December 2019 Statement in Support of Claim did not identify the prior final decision that allegedly contains CUE. It only describes the current effective date, and the date the Veteran was diagnosed with the disability. It concludes by asking for a "retroactive grant of entitlement to benefits based on a clear and unmistakable error." Correspondence in January 2020 relates to the Board's denial of an earlier effective date for the award of service connection for traumatic brain injury. The January 2021 correspondence from the Veteran recounts the facts underlying his injury in service and his current residuals, and he points to the evidence of these facts. He describes several rating decisions and their outcomes as well as the December 1998 Board decision awarding service connection to the Veteran. He asks VA to please reconsider his "claim." Nonetheless, he does not describe which decision is erroneous. In the VA Form 10182, the Veteran stated that the "[e]ffective date of award for hypesthesia of left temporal area and left submandibular area and left lower area with pain should be 1967." Again, this does not identify decision that allegedly contains CUE. The Board does not raise this issue to be overly technical. The Board raises the issue as to the date of decision being challenged because the analysis is affected, including such things as the evidence and law to be considered. For instance, CUE must be based on the evidence of record and the law in effect at the time of the decision being challenged. Without the identification of the decision being challenged, the Board cannot reasonably discern the critical facts and law in effect. Moreover, each specific assertion of CUE is a separate and distinct claim that must be the subject of a decision by the AOJ before the Board can exercise jurisdiction over it. See Andre v. Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002). CUE claims as to different final decisions constitute separate and distinct claims that must be separately adjudicated by the AOJ. Here, because the decision being challenged is not identified, the claim must be dismissed. Although the Board must read pro se filings liberally, Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), even a liberal reading does not allow the Board to identify with any degree of confidence which decision is being challenged. Finally, the Board notes that AOJ decisions that are appealed to the Board become subsumed by the Board decision issued in that case. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). 38 C.F.R. § 20.1104. AOJ decisions that are not directly appealed to the Board may be subsumed by a later Board decision that addresses the same issue and the same factual basis (delayed subsuming). Manning v. Principi, 16 Vet. App. 534, 541 (2002) ("[A] later BVA decision's delayed subsuming of an RO decision occurs only where the Board decided the same issue that the RO decided and where the RO decision and BVA review were based on the same factual basis"). Because the Veteran's claim of CUE has not met the standards to reasonably allow the Board to identify the decision being challenged, the claim is dismissed. This dismissal does not affect the Veteran's ability to refile a later CUE claim identifying the challenged rating decision and complying with the specificity requirements for a CUE claim or motion. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.