Citation Nr: A21017264 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 181210-1245 DATE: October 26, 2021 ORDER Entitlement to an effective date earlier than January 7, 2012, for the award of service connection for residuals of excision of dorsal ulnar nerve neuroma of the right hand is denied. Entitlement to an effective date earlier than January 7, 2012, for the award of service connection for residuals of fracture of fifth metacarpal of the right hand, status post fusion of fourth and fifth carpometacarpal joints is denied. FINDINGS OF FACT 1. The Veteran's claim for service connection for the residuals of his right-hand condition was received on January 7, 2012; a separate rating for residuals of excision of the dorsal nerve neuroma of the right hand was established with that date in a May 2016 rating decision, and no event or document memorialized in the record warrants an effective date earlier than the receipt of the Veteran's claim. 2. The Veteran's claim for service connection for the residuals of his right-hand condition was received on January 7, 2012; service connection for the orthopedic manifestations of this condition was established in a May 2012 rating decision, and the record does not indicate that the Veteran disputed the effective date assigned within one-year of that decision nor that any error occurred in the assignment of the effective date of January 7, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than January 7, 2012, for the award of service connection for residuals of excision of dorsal ulnar nerve neuroma of the right hand have not been met. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date earlier than January 7, 2012, for residuals of fracture of fifth metacarpal of the right hand, status post fusion of fourth and fifth carpometacarpal joints have not been met. 38 U.S.C. §§ 501, 5107, 5110, 7105; 38 C.F.R. §§ 3.102, 3.105, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active service from January 2001 to August 2001, from September 2003 to February 2004, and from September 2007 to December 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 decision. This appeal appears in this posture after the Veteran elected to enter the modernized appeal process via the Rapid Appeals Modernization Program (RAMP). The Veteran initially elected to have this case decided with the benefit of a hearing before a Veterans' Law Judge (VLJ) but later elected to withdraw the hearing request in June 2021 correspondence. Earlier Effective Dates Entitlement to an effective date earlier than January 7, 2012, for the award of service connection for residuals of excision of dorsal ulnar nerve neuroma of the right hand The Veteran seeks an effective date earlier than January 7, 2012, for his service-connected right-hand conditions. His testimony at a November 2016 hearing (pertaining to a separate appeal) along with his repeated submissions indicates that he believes the process of being separated from the military via a medical board process entitled him to VA compensation despite the fact that he, as he acknowledges in his testimony, made no claim for benefits until January 7, 2012. His submissions appear to indicate that he believes he should be entitled to an effective date no later than October 2010, approximately 60 days prior to the end of his most recent period of service. As a result of the Veteran's January 2012 claim, service connection for residuals of his in-service right-hand condition was established with the effective date of January 7, 2012, in a May 2012 decision. Only the orthopedic manifestations were established as service-connected at that time. The effective date for that condition is addressed in Section 2 below. The Veteran sought an increased rating, eventually resulting in a May 2016 decision that increased his compensation for the orthopedic residuals of his right hand and established a separate rating for the residuals of the excision of the dorsal ulnar nerve neuroma, compensating him for peripheral nerve symptoms in the right hand. He asserted entitlement to an earlier effective date for both the right-hand conditions (along with several other conditions that were not decided in the May 2016 decision and were not and are not before the Board). In general, the effective date of an award of service connection is the date that a claim for the benefit is received by VA or the date that entitlement arose, whichever is later. When a veteran files a claim within 1 year after separation from service, the effective date is the day following separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Here, the facts of the case preclude a finding in the Veteran's favor regarding entitlement to an effective date earlier than the date of the receipt of is claim on January 7, 2012. The last day of the Veteran's service was December 14, 2010. His service was terminated after a medical board proceeding determined that he was disabled. He did not file a claim or otherwise make VA aware of his intention to seek benefits from VA until January 7, 2012, more than one year after his separation. Consequently, VA regulations provide that the appropriate date for his subsequently granted award of service connection for his right-hand residuals is the date of the receipt of his claim, in this case, January 7, 2012. In his testimony in November 2016, the Veteran addressed these facts and does not dispute them. He testified that he was separated from service via a medical board proceeding, apparently against his will, but believed that being separated from service via a medical board process would entitle him to benefits. Consequently, the Veteran waited for his benefits to start, and when it became apparent that no benefits were forthcoming, he filed a claim for VA benefits in January 2012. Given the facts presented, and the Veteran's admission that he simply waited for benefits to begin rather than filing an appropriate claim that could be adjudicated by this agency, the Board finds that the earliest available date for the award of service connection for his right-hand conditions is January 7, 2012, the date that his claim was received. His version of events is congruent with the documents memorialized in the record, that he did not apply until January 7, 2012. As a result, VA regulations preclude an effective date earlier than that date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Additionally, since there is no dispute about when the submission was made to VA, the Board finds that there is no reasonable doubt regarding the appropriate effective date in this case. The Veteran, through his counsel, appears to assert that, because the Veteran's conditions were known to the service department by at least October 2010, he should be entitled to VA benefits from that date. However, no VA regulation provides for an effective date under those circumstances. Accordingly, an effective date earlier than January 7, 2012, for the award of service connection for residuals of excision of the dorsal ulnar nerve of the right hand is not warranted. Entitlement to an effective date earlier than January 7, 2012, for the award of service connection for residuals of fracture of fifth metacarpal of the right hand, status post fusion of fourth and fifth carpometacarpal joints The Veteran also seeks entitlement to an effective date earlier than January 7, 2012, for the award of service connection for residuals of fracture of the fifth metacarpal of the right hand, status post fusion of fourth and fifth carpometacarpal joints for the same reasons that he claimed entitlement to an earlier effective date for the award of the residuals of excision of the dorsal ulnar nerve of the right hand. However, the award of service connection for the orthopedic manifestation of these symptoms appears in a different procedural posture than the peripheral nerve residuals does. Service connection for the orthopedic residuals of the Veteran's right-hand conditions was established in a May 2012, and, while the Veteran and his representative submitted correspondence disputing the evaluation of the award in June 2012 which was taken to be a notice of disagreement with the then noncompensable evaluation for this award, the correspondence did not dispute the effective date assigned for the award of service connection for this condition. A statement of the case was provided in January 2013 that addressed the issue of entitlement to an increased rating claim for the right-hand condition (among others) but did not address the effective date for the award of service connection for that condition, because the Veteran's notice of disagreement did not address that issue. The Veteran responded with a March 2013 VA Form 9 Substantive Appeal that similarly did not dispute the effective date assigned for service connection for this award. The first indication that the Veteran was claiming entitlement to an effective date earlier than assigned for any of the disabilities he was service-connected for appears to be a November 2014 correspondence where he asserts entitlement to a 100 percent rating plus special monthly compensation no later than October 2010. Thus, the effective date for service connection for orthopedic manifestations was established in a May 2012 decision, and the Veteran did not file a notice of disagreement or otherwise present evidence material to the issue of an earlier effective date within a year of that decision. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.156(b), 19.52(a). Consequently, the decision was final with respect to the effective date assigned for service connection for the orthopedic manifestations. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Final determinations regarding the assignment of an effective date cannot be challenged through a freestanding claim for entitlement to an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date "vitiates the rule of finality"); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). An earlier effective date can only be reviewed either through a timely appeal of the initial decision or by alleging and demonstrating clear and unmistakable error. Leonard v. Principi, 405 F.3d 1333 (Fed. Cir. 2005). A clear and unmistakable error must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of clear and unmistakable error, the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). The Board finds that the Veteran did not specifically claim a clear and unmistakable error in this case. He has simply alleged that the assignment of the effective date should be earlier than that awarded, and frequently earlier than the date of his separation from service because his disabilities "were known" to the service department prior to his separation. Consequently, to the extent that his appeal here is a freestanding earlier effective date claim without a pleading of clear and unmistakable error, the claim is denied. To the extent that the Veteran's submissions do constitute an allegation of clear and unmistakable error, the Board finds that he has not established that a clear and unmistakable error occurred in the assignment of his effective date for the award of service connection for the orthopedic manifestations of his right-hand condition. In order to demonstrate clear and unmistakable error, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). In Russell v. Principi, 3 Vet. App. 310 (1992), the Veterans Court set forth a three-pronged test for determining when there is clear and unmistakable error present in a prior rating decision. These are (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 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. at 313-14. Clear and unmistakable error 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 results would have been manifestly different but for the error. See Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (holding that in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). Here, the Board finds that the record does not establish that any error occurred in the assignment of the effective date for the Veteran's award. As discussed in the previous section, the Veteran was under the mistaken belief that the process of undergoing the medical board proceeding itself would result in the award of benefits from VA. Consequently, as he testified, he did not file either a formal or informal claim until January 7, 2012, more than a year after his service separation. VA regulations prescribe this as the appropriate effective date under these circumstances. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). There is therefore no discernable error of fact or law on which to base a finding of clear and unmistakable error, and the Veteran's claim is also denied on this basis. Finally, to the extent that the Veteran's June 2012 correspondence can be interpreted as a timely notice of disagreement with the effective date assigned in the May 2012 decision or that his December 2018 appeal of the October 2018 RAMP decision can be interpreted as a notice of disagreement with a "newly established" effective date in that decision, the Board finds that the evidence of record does not meet the criteria for an earlier effective date for the same reasons as an earlier effective date was denied in the previous portion of this decision pertaining to the Veteran's peripheral nerve conditions. The Veteran was separated from service more than one year before his claim was received in January 2012. The record reflects, and the Veteran's testimony confirms, that there was no communication from the Veteran to VA manifesting an intent to seek service connection prior to the date this claim was received. Under these circumstances, the law is clear, the appropriate effective date is the date that the claim was received, in this case, January 7, 2012. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The Veteran's theory as to why an earlier effective date is warrantedthat he was separated from service via a medical board procedure and that his conditions were therefore "known" prior to his separationis not a ground for deviating from the effective date set by regulation. Consequently, for all of the reasons set forth above, entitlement to an effective date earlier than January 7, 2012, for the award of service connection for orthopedic manifestations of the right-hand condition is not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.