Citation Nr: A21019239 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 211018-191701 DATE: December 2, 2021 ORDER Entitlement to revision of a July 2019 decision, which denied entitlement to an effective date prior to March 14, 2019, for an increased rating for a voiding dysfunction, based on clear and unmistakable error (CUE) is denied. Entitlement to revision of a July 2019 decision, which denied entitlement to an effective date prior to March 14, 2019, for entitlement to service connection for peripheral neuropathy of the left lower extremity, based on CUE is denied. Entitlement to revision of a July 2019 decision, which denied entitlement to an effective date prior to March 14, 2019, for entitlement to service connection for peripheral neuropathy of the right lower extremity, based on CUE is denied. FINDINGS OF FACT 1. In a July 2019 higher-level review decision, the adjudicator denied claims for effective dates prior to March 14, 2019, for an increased rating for a voiding dysfunction and service connection for peripheral neuropathy of the bilateral lower extremities. The Veteran was notified of the July 2019 higher-level review rating decision but did not appeal the decision or file a supplemental claim during the appeal period, and the rating decision became final. 2. The correct facts, as known at the time, were before the adjudicator in July 2019 and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of a July 2019 decision that denied an effective date prior to March 14, 2019, for an increased evaluation for a voiding dysfunction based on CUE have not been met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. 2. The criteria for entitlement to revision of a July 2019 decision that denied an effective date prior to March 14, 2019, for service connection for peripheral neuropathy of the left lower extremity based on CUE have not been met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. 3. The criteria for entitlement to revision of a July 2019 decision that denied an effective date prior to March 14, 2019, for service connection for peripheral neuropathy of the right lower extremity based on CUE have not been met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1957 to February 1977 and from June 1984 to July 1988. A Department of Veterans Affairs (VA) Regional Office (RO) issued the rating decision on appeal in August 2021. This decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In his October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the RO decision on appeal. 38 C.F.R. § 20.301. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Earlier Effective Date By way of procedural background, the Veteran filed an application for an increased rating for residuals of prostate cancer that was received on April 20, 2018. Additionally, the Veteran filed a VA 21-0966, Intent to File, that was received on April 26, 2018. The intent to file form identified him as the claimant and indicated that he wished to file a claim for compensation benefits. In May 2018, the RO sent a notification letter informing the Veteran it had received his intent to file form on April 26, 2018, and informed him that if his completed application was received within one year from the date that his intent to file form was received and VA decided that he was entitled to benefits, VA may be able to compensate him from the date his intent to file form was received. VA also included a copy of VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, and explained how to submit a formal claim. Thereafter, the Veteran submitted a completed VA Form 21-526EZ with respect to a single disability, basal cell carcinoma secondary to Agent Orange exposure. The RO denied claims for service connection for basal cell carcinoma and for an increased rating for a voiding dysfunction in a November 2018 rating decision. Thereafter, the Veteran submitted a second VA Form 21-526EZ with respect to an increased rating for a voiding dysfunction, as well as for service connection for peripheral neuropathy secondary to diabetes mellitus, that was received in March 2019. Along with his application for benefits, he submitted a disability benefits questionnaire regarding the severity of his voiding dysfunction that was completed on March 14, 2019. Based on this evidence, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities from March 26, 2019, and for an increased rating for the voiding dysfunction from March 14, 2019, in a May 2019 rating decision. The Veteran submitted a timely VA Form 20-0996, Request for Higher-Level Review, in June 2019. In this request for review, he stated that he had filed an intent to file form on April 26, 2018, and that his effective dates should go back to that date because he filed his application for benefits within one year of the intent to file form. Thereafter, the RO issued a higher-level review decision in July 2019, which denied earlier effective dates for his increased rating and service connection claims. However, the RO clarified in the July 2019 rating decision that the May 2019 rating decision contained harmless error and that the effective date that should have been assigned for the bilateral lower extremity peripheral neuropathy was March 14, 2019, as opposed to March 26, 2019, which was corrected on the accompanying codesheet. The Veteran did not file a supplemental claim or appeal the higher-level review decision to the Board. In August 2021, he asserted that there was CUE in the July 2019 rating decision that denied an earlier effective date for an increased rating for a voiding dysfunction and for service connection for peripheral neuropathy in the bilateral lower extremities. Essentially, he contends that the RO incorrectly applied 38 C.F.R. § 3.155, regarding the effective date assigned when an intent to file form is received, and that this error manifestly changed the outcome of the decision. More specifically, he argues that in situations where one intent to file form is submitted and then two separate formal claims are received within one year of the intent to file form, 38 C.F.R. § 3.155 permits VA to assign effective dates that go back to the date the intent to file form was received with respect to both formal claims rather than for only the first formal claim. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, the July 2019 decision denied earlier effective dates for the increased rating for the voiding dysfunction or service connection for the peripheral neuropathy of the bilateral lower extremities. The Veteran did not timely appeal this determination to the Board or request review of this decision within one year of its promulgation. Thus, the July 2019 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). Generally, the law extant at the time of the July 2019 decision that the Veteran is challenging provided that, with certain exceptions, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. With respect to claims for increased ratings, the effective date assigned will be the date the claim was received, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). However, if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). Effective March 24, 2015, VA amended various regulations governing how to file a claim. The amended regulations require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.31(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). Additionally, a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as his next friend may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form. If VA receives a complete application form appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). The provisions of 38 C.F.R. § 3.155(d)(1)(ii) also state that if VA receives a complete claim within one year of filing an intent to file a claim that meets the requirements set forth above, it will be considered filed as of the date of receipt of the intent to file a claim. The regulation goes on to provide that only one complete claim for a benefit may be associated with each intent to file a claim for that benefit, although multiple issues may be listed within a complete claim for a benefit. 38 C.F.R. § 3.155(d)(1)(ii) (emphasis added). Relevantly, in the event that multiple complete claims for a benefit are filed within one year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim. Id. (emphasis added). Significantly, the language of the regulation indicates that the use of the term "benefit" refers broadly to a general type of benefit, such as a claim for compensation benefits versus a claim for pension benefits, as opposed to a more specific type of benefit, such as a claim for service connection for a specific disability. See also 38 C.F.R. § 3.155(b)(2); Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs, 818 F.3d 1336, 1342 n.3 (Fed. Cir. 2016). It follows that the regulation permits only the first claim for compensation that is filed to be associated with the intent to file a claim for compensation where multiple claims for compensation are filed within one year. The Veteran's representative argues that the regulations in 38 C.F.R. § 3.155 permitted the RO to assign an effective date for the instant increased rating and service connection claims going back to the date the intent to file form was received on April 26, 2018. He points to the language of 38 C.F.R. § 3.155(b)(6), which states that VA will not recognize more than one intent to file concurrently for the same benefit (e.g., compensation, pension). The Veteran's representative essentially contends that although the regulations address what would happen if two intent to file forms were received for the same benefit, the regulations do not state that an intent to file form can only correspond to a single future application for benefits. He argues, "the cited regulation does not contemplate a scenario such as the instant case in which a single [intent to file form] is filed and then multiple applications are filed within the original [one-year] window." The Board disagrees. In fact, as set forth above, the relevant regulations clearly contemplate this scenario (i.e., where multiple complete formal claims for benefits are received after receiving one form declaring an intent to file a claim for benefits). The regulation 38 C.F.R. § 3.155(d)(1)(ii) provides that if multiple complete forms for benefits (e.g., compensation benefits) are received within one year of an intent to file a claim for those benefits, only the first claim for those general benefits that was filed will be associated with the intent to file a claim for that general type of benefits. This is the exact situation the RO faced in July 2019, when it denied the claim for effective dates prior to March 14, 2019. It thus cannot be said that the adjudicator clearly or unmistakably misapplied the appropriate regulations in July 2019. With respect to the effective date assigned for the increased rating for the Veteran's voiding dysfunction, the Board has also considered whether an effective date prior to March 14, 2019, would have been warranted at the time of the July 2019 decision based on continuous pursuit of an increased rating claim. To that end, continuous pursuit of a claim or an issue can be achieved by timely and properly filing an appropriate review option, generally within one year. 38 C.F.R. § 3.2500(c). If a claim is continuously pursued, it will be considered filed as a of the date of the first claim in the continuously pursued chain, as opposed to the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). However, if a claimant files a new increased rating claim on VA Form 21-526EZ during the timeframe during which he could request higher-level review, file a supplemental claim, or appeal the decision to the Board, this does not establish continuous pursuit of a claim. This is because the newly filed VA Form 21-526EZ is a request for a higher rating based on a change or worsening in severity, as opposed to a request for a review of a prior decision. Here, although the Veteran filed a second VA Form 21-526EZ requesting a higher rating for his voiding dysfunction in March 2019, within one year of the November 2018 rating decision, he did not request review of the November 2018 rating decision. Instead, he simply requested a higher rating based for an increased disability. As such, the Veteran did not continuously pursue his April 2020 claim for an increased rating for his voiding dysfunction, and it was not clearly and unmistakably erroneous for the RO to not assign an effective date prior to March 14, 2019, on this basis. Moreover, the Board reiterates that 38 C.F.R. § 3.400 provides that the effective date of an increased rating is the date of the claim or the date entitlement arose, whichever is later, or the date an increase in disability became factually ascertainable, if within one year prior to the claim. The Board has considered whether the July 2019 adjudicator misapplied the law regarding effective dates for increased ratings to the extent that evidence from up to one year prior to the date of the receipt of his VA Form 21-526EZ showed that an increase in disability was factually ascertainable. However, the evidence from within one year prior to the receipt of the VA Form 21-526EZ does not show that an increase in disability became factually ascertainable until March 14, 2019 (i.e., the date of a disability benefits questionnaire that indicated the Veteran required absorbent materials that had to be changed more than four times a day). This is the effective date the RO assigned for the increase in the Veteran's disability evaluation. Accordingly, the RO did not clearly and unmistakably misapply the law in this respect to the extent it denied an earlier effective date in its July 2019 decision. In sum, the Board finds that the July 2019 decision that denied earlier effective dates for the increased rating for a voiding dysfunction and service connection for peripheral neuropathy in the bilateral lower extremities was consistent with, and reasonably supported by, the evidence then of record, and the adjudicators correctly applied existing legal authority. There is no undebatable error that is shown that would have manifestly changed the outcome of the rating decision. The Board is sympathetic to the Veteran's contentions but is bound by the relevant statutory and regulatory provisions. As such, the motion to revise the July 2019 rating decision must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate 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.