Citation Nr: 21067808 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-49 542 DATE: November 5, 2021 ORDER Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for left knee osteoarthritis based on clear and unmistakable error (CUE) is granted. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for right knee osteoarthritis based on CUE is granted. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for lumbar degenerative disc disease based on CUE is granted. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for tinnitus based on CUE is granted. FINDINGS OF FACT 1. The Veteran's initial claim for service connection for back pain, a left knee injury, a right knee injury, tinnitus and other claims was received on January 26, 2010. 2. Pursuant to a February 2011 Rating Decision, the Veteran's claims were denied. He did not appeal that decision or submit new and material evidence within the one-year appeal period. Therefore, that decision became final. 3. On January 19, 2017, VA received an intent to file a claim for compensation. Immediately thereafter, a formal request to reopen the Veteran's previously denied claims for service connection for back pain, a left knee injury, a right knee injury, and tinnitus was received on February 1, 2017. Attached to that submission was a copy of the Veteran's service treatment records. 4. Pursuant to an April 2017 rating decision, service connection was granted for lumbar degenerative disc disease, left knee osteoarthritis, right knee osteoarthritis, and tinnitus. The assigned effective date for each claim was January 19, 2017. 5. In August 2017, VA received a statement in support indicating that the Veteran suggested entitlement to an earlier effective date of January 26, 2010. In support of his contention, he contends that a February 2011 VA notification letter indicated that efforts to obtain a copy of his service treatment records were unsuccessful. A memorandum of unavailability, dated November 2010, also suggested that the Veteran's service treatment records were unavailable. 6. Also, in August 2017, the Veteran submitted a VA 21-526EZ, Fully Developed Claim (for Compensation) in with he asserted entitlement to an earlier effective date based upon CUE. 7. As the Veteran's service treatment records were not fully considered and were in VA's constructive possession at the time of the February 2011 rating decision, the decision contained CUE and requires revision. 8. Resolving all doubt in the Veteran's favor, the evidence supports an earlier effective date of January 26, 2010, for the award of service connection for left knee osteoarthritis. 9. Resolving all doubt in the Veteran's favor, the evidence supports an earlier effective date of January 26, 2010, for the award of service connection for right knee osteoarthritis. 10. Resolving all doubt in the Veteran's favor, the evidence supports an earlier effective date of January 26, 2010, for the award of service connection for lumbar degenerative disc disease. 11. Resolving all doubt in the Veteran's favor, the evidence supports an earlier effective date of January 26, 2010, for the award of service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for revision of the February 2011 rating decision on the basis of CUE have been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a), 3.307, 3.309 (2020). 2. The criteria for establishing entitlement to an earlier effective date of January 26, 2010, for the award of service connection for left knee osteoarthritis on the basis of CUE have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.400 (2020). 3. The criteria for establishing entitlement to an earlier effective date of January 26, 2010 for the award of service connection for right knee osteoarthritis on the basis of CUE have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.400 (2020). 4. The criteria for establishing entitlement to an earlier effective date of January 26, 2010, for the award of service connection for lumbar degenerative disc disease on the basis of CUE have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.400 (2020). 5. The criteria for establishing entitlement to an earlier effective date of January 26, 2010, for the award of service connection for tinnitus on the basis of CUE have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Army from October 1997 to February 1998 and from May 2001 to May 2005. In an October 2018 substantive appeal, the Veteran requested a hearing at the local VA office. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Duties to Assist and to Notify The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the Veteran's claims of entitlement to earlier effective dates for the award of service connection for lumbar degenerative disc disease, left knee joint osteoarthritis, right knee osteoarthritis, and tinnitus. Baldwin v. Principi, 15 Vet. App. 302 (2001). Regulations and legal precedents establish that a review for CUE is only based upon the evidence of record at the time the decision was entered. Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Further, the Board observes that a claim for an earlier effective date for the grant of service connection is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). As such, no additional 38 U.S.C. § 5103 (a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Earlier Effective Dates - Generally In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2020). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from that date. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2020); Harper v. Brown, 10 Vet. App. 125 (1997). As applicable in this appeal, a "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a). 1. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for left knee osteoarthritis based on CUE The Veteran seeks revision of the February 4, 2011 rating decision which denied his claim for service connection for a lumbar spine disability, left knee disability, right knee disability, and tinnitus. Specifically, he contends that the decision contains CUE as the rating office (RO) suggested a complete copy of the Veteran's service treatment records was unavailable for review. Having reviewed the evidence of record in its entirety, the Board finds that copies of the Veteran's service treatment records were associated with the file at the time of the February 4, 2011, rating decision. However, it does not appear that these records were fully reviewed or considered in the preparation of the 2011 decision. Under the provisions of 38 C.F.R. § 3.105 (a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. There is a three-prong test to determine whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). On review of the record, the Board finds that the evidence supports a finding of CUE as to the February 2011 rating decision, to the extent that it failed to fully acknowledge or consider then-existing evidence. In this case, service treatment records confirm that a physical examination found no disqualifying defects at enlistment in February 1997. The Veteran was deemed qualified for active service. An audiological examination conducted on or about the same time frame, also revealed normal findings. There was no reference to ear trouble, knee trouble, or recurrent back pain in a corresponding report of medical history. However, in June 2000, an audiological evaluation revealed slight high frequency hearing loss at 3000 Hertz (Hz), bilaterally. The comments section noted routine exposure to hazardous noise. In July and August 2002, the Veteran was treated for left knee pain. During air assault school, he experienced pain with prolonged running and weight bearing, particularly when participating in road marches. Other symptoms include a sharp, "pins and needles" sensation along the anterior knee. Slight tenderness to palpation also impacted the medial aspect of the joint. The Veteran endorsed difficulty maneuvering from kneeling to standing. Pain was reported with active and passive motion. A temporary profile was granted with restrictions on running, marching, and carrying items in excess of 15 pounds. Motrin was prescribed to treat pain along with physical therapy and a temporary profile. At separation, a report of medical history, endorsed problems with swollen painful joints, knee trouble, ear trouble, and recurrent back pain in June 2005. In the comments section, the Veteran's knee condition was described as pain with swelling and locking. Upon review of the February 4, 2011, rating decision, the only notation regarding the left knee during service is a statement that the Veteran was "treated for left knee pain in 2003." There is significantly more evidence associated with the service treatment records, as discussed above, and as such, it is unclear that the service treatment records were in fact reviewed in their entirety. Further confusion arises with respect to the formal finding of the unavailability of service treatment records made in November 2010. The Board stresses that records were associated with the file in 2010 and that the 2011 rating decision indicated that these records were part of the evidence. However, the discussions provided in the rating decision fails to reflect that these records were in fact properly reviewed or considered in their entirety. In this case, the Veteran's initial claim for service connection was filed on January 26, 2010. At that time, the evidence of record included magnetic resonance imaging (MRI) of the lumbar spine, dated March 2007. The diagnostic findings revealed a 2 millimeter (mm) central and bilateral paracentral disc protrusion at L5-S1, with mild indents of the ventral epidural fat without neural impingement. At L4-L5, a 5 mm central and left paracentral disc protrusion was observed, with mild indents at the ventral thecal sac, without evidence of neural impingement. A memorandum of unavailability, dated November 2010, indicated that the Veteran's Department of Defense records were unavailable. Inconclusive etiological VA opinions dated January 2011, regarding the Veteran's low back, bilateral knees, and bilateral hearing loss with tinnitus were also included in the record. In a February 2011 rating decision, the RO denied the Veteran's claims for service connection. Years later, pursuant to an April 2017 rating decision, the Veteran was granted service connection for lumbar degenerative disc disease, left knee joint osteoarthritis, right knee osteoarthritis, and tinnitus. The assigned effective date for each claim was January 19, 2017. In his notice of disagreement, dated November 2017, the Veteran alleged entitlement to an earlier effective date of January 26, 2010. Specifically, he stated that the RO committed CUE in its February 2011 decision, as the related notification letter stated that service treatment records were unavailable for review. However, service treatment records dated October 1997 through May 2005 were documented as available evidence. A memorandum of unavailability also noted the absence of service treatment records in November 2010. In February 2017, a request to reopen was submitted and the Veteran's claims were granted in April 2017. Other evidence of record included multiple lay statements. Lay statements, dated August 2017, again referenced the Veteran's contention that the February 2011 rating decision denied his claims in error, as it failed to fully consider all available evidence of record, which included service treatment records from October 1997 through May 2005. During a Board hearing in January 2021, the Veteran restated his previously submitted arguments. He also acknowledged that receipt of the February 2011 notification letter which noted the possibility of reconsideration when and if the previously unavailable records were located. As the only new evidence obtained in connection with his request to reopen were updated VA examinations, revision of the previous decision is appropriate. Moreover, the Veteran reported participation in intensive physical training, with prolonged running, airborne jumps, and ruck marching while carrying heavy loads during active service. Performance of stated duties occurred while wearing combat boots. In connection with the above, the Veteran experienced frequent back and bilateral knee pain, with swelling and locking of the knee. Persistent symptomology has occurred since separation. While the Veteran acknowledged documentation of only left knee pain in service, he reports persistent symptoms impacting both knees which dates back to the same time period. As to his experience of tinnitus, military personnel records confirm an official military occupation as a bravo artillery crew member. The listed role has been associated with hazardous noise exposure. As previously stated, prior VA decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105 (a). Where the evidence establishes CUE, the prior rating decision will be reversed or amended. Id. Considering the evidence of record at the time of the February 2011 rating decision, the Board agrees that the CUE standard has been established and but for the error, a grant of service connection would have resulted. In reaching the stated conclusion, the Board also recognizes that favorable finding of service connection was based in part, upon a March 2017 VA opinion which found a nexus between the repetitive minor left knee trauma related to parachute jumps in service and the Veteran's subsequent diagnosis of osteoarthritis of the left knee. It also notes that adjudicator may have been unaware that at least a portion of the Veteran's service treatment records were available for review at the time of the February 2011 rating decision. Accordingly, the Board finds that but for the identified error, it is "undebatable" that the outcome would have manifestly changed. Thus, entitlement to an earlier effective date of January 26, 2010 has been established. This date corresponds with the Veteran's initial claim for service connection. 2. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for right knee osteoarthritis based on CUE The Veteran contends that he is entitled to an earlier effective date for the award of service connection for a right knee disability based upon CUE. Resolving all doubt in his favor, the Board finds that the evidence is in equipoise with the Veteran's claim. As a preliminary matter, the Board incorporates by reference the procedural arguments, findings, and conclusion note in Section 1. In short, the Board finds that the evidence supports a finding of CUE as to the February 2011 rating decision which denied the Veteran's claim for service connection for a right knee disability. In support of the stated conclusion, the Board recognizes that the April 2017 grant of service connection for a right knee disability was based in part, on March 2017 VA opinion. Therein, the examiner acknowledged the Veteran has a current diagnosis of osteoarthritis of the right knee. Although service treatment records were silent for complaints of right knee injury, general reports of knee pain with swelling and locking were documented in a medical evaluation at separation. Additionally, military personnel records confirm that the Veteran completed airborne training school and was awarded a Parachute Badge. Therefore, it was deemed at least as likely that his right knee osteoarthritis was causally related to active service, to include as due to repetitive minor right knee trauma related to parachute jumps. Accordingly, the Board agrees that revision of the February 2011 rating decision is warranted, and an earlier effective date of January 26, 2010 has been established for the grant of service connection for osteoarthritis of the right knee. This date corresponds with the initial filing of the Veteran's claim for service connection for the same condition. 3. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for lumbar degenerative disc disease based on CUE The Veteran contends that he is entitled to an earlier effective date for the award of service connection for a lumbar spine disability based upon CUE. Resolving all doubt in his favor, the Board finds that the evidence is in equipoise with the Veteran's claim. As a preliminary matter, the Board incorporates by reference the procedural arguments, findings, and conclusion note in Section 1. In short, the Board finds that the evidence supports a finding of CUE as to the February 2011 rating decision which denied the Veteran's claim for service connection for a lumbar spine disability. In reaching the stated conclusion, the Board notes that a March 2017 VA opinion noted that X-rays of the lumbar spine in March 2007 revealed a current degenerative disc disease of the lumbosacral spine. The same findings were shown in March 2017. In rendering a favorable etiological opinion, the examiner noted the Veteran's report of recurrent back pain at separation in January 2005. Thereafter, he continued to experience low back pain as documented in subsequent treatment records dated in 2007 and 2009. Thus, the examiner concluded that it is as least as likely as not that the Veteran suffered repetitive minor low back trauma with parachute jumps which contributed to his current diagnosis of degenerative disc disease of the lumbar spine. Accordingly, the Board agrees that revision of the February 2011 rating decision is warranted, and an earlier effective date of January 26, 2010 has been established for the grant of service connection for lumbar degenerative disc disease. This date corresponds with the initial filing of the Veteran's claim for service connection for the same condition. 4. Entitlement to an earlier effective date, prior to January 19, 2017, for the award of service connection for tinnitus based on CUE The Veteran contends that he is entitled to an earlier effective date for the award of service connection for tinnitus. Resolving all doubt in his favor, the Board finds that the evidence is in equipoise with the Veteran's claim. As a preliminary matter, the Board incorporates by reference the procedural arguments, findings, and conclusion note in Section 1. In short, the Board finds that the evidence supports a finding of CUE as to the February 2011 rating decision which denied the Veteran's claim for service connection for tinnitus. In reaching the stated conclusion, the Board notes that service treatment records confirm that no audiological abnormalities were documented at enlistment. However, a threshold shift was document on subsequent testing in separation. In fact, high frequency hearing loss with complaints of "ear trouble" were documented at separation. Moreover, a VA examiner in 2011 intimated an inability to offer an opinion (without resorting to speculation) regarding the Veteran's complaints of bilateral hearing loss and tinnitus in the absence of a current diagnosis of hearing loss. However, service treatment records confirm high frequency bilateral hearing loss at 3000 Hz at separation. As noted above, service treatment records were in "constructive possession" of VA at the time of the initial claim for service connection. Accordingly, the Board agrees that revision of the February 2011 rating decision is warranted, and an earlier effective date of January 26, 2010 has been established for the grant of service connection for tinnitus. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.