Citation Nr: 21005789 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 20-00 384 DATE: February 2, 2021 ORDER Entitlement to an effective date earlier than January 29, 2016, for the grant of service connection for chronic lymphocytic leukemia (CLL) is denied. The question of clear and unmistakable error (CUE) in an August 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision in failing to assign an earlier effective date for the service-connected CLL is dismissed. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for CLL was received on January 29, 2016, more than a year after discharge from service. VA did not receive from the Veteran or his authorized representative or other relevant party an earlier request for an application for that benefit. There was no such earlier communication which could be interpreted as expressing a desire to claim service connection or a belief in entitlement to VA disability compensation for CLL. 2. As the Board addresses on the merits the question of whether an effective date earlier than January 29, 2016 is warranted for the grant of service connection for CLL in the instant decision, and as the August 2016 RO rating decision regarding this issue has effectively been rendered non-final, the Veteran’s CUE motion for this issue has been rendered moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to January 29, 2016 for the grant of service connection for CLL have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 2. As the Veteran’s CUE motion has been rendered moot, it must be dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1962 to December 1966. During the current appeal, and specifically in November 2020, he testified at a virtual Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Earlier Effective Date for Grant of Service Connection for CLL The RO assigned an effective date of January 29, 2016 for the grant of service connection for CLL. The Veteran contends, in effect, that he should be awarded an earlier effective date for the award of service connection for CLL based on the evidence presented. However, he has not presented a valid basis for an earlier effective date, and hence his claim cannot be granted. Generally, when a claim for service connection is received more than a year after discharge from service, the effective date for a grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2)(i). An exception to this general rule has not been presented in this case. The Veteran’s claim for service connection for CLL was received on January 29, 2016, which is almost 50 years after his service discharge in December 1966. A review of the record does not reveal that the Veteran submitted a request or an application for such benefit earlier than January 29, 2016, and no prior contact or submission was received which may be interpreted as such a request for an application. There was no such earlier communication which could be interpreted as expressing a desire to claim service connection for CLL or a belief in entitlement to VA disability compensation for CLL. 38 C.F.R. § 3.155. Accordingly, an earlier effective date for service connection for CLL is not warranted. Moreover, even if the Veteran was diagnosed with CLL prior to January 29, 2016, between the date the claim was received (January 29, 2016) and any prior date entitlement may have arisen, it is the latter date, January 29, 2016, that is the proper effective date to be assigned. The Board has considered the Veteran’s argument that his basis for claiming an earlier effective date is that he has had CLL since August 2009, but a VA physician did not diagnose him with this disability until years later. See October 2017 notice of disagreement lay statement. As such, he claims, he was prevented from filing a claim for benefits for CLL until January 29, 2016, when he was made aware of his diagnosis. See October 2017 statement from Veteran. The Veteran further states that there was malpractice on the part of VA in failing to diagnose and inform him of his CLL because it prevented him from filing his claim much earlier. See November 2020 Board hearing transcript at 6. In denying this appeal, the Board is not dismissing, or in any way disregarding, the Veteran’s contentions that a VA physician failed to diagnose him with CLL in 2009. However, the Veteran’s claim of medical malpractice is sufficiently distinct from the claim being evaluated that the Board does not consider it to be within the scope of this appeal. In this regard, the Veteran should file a separate claim for medical malpractice with the appropriate VA RO. In sum, there is no legal basis for assignment of an earlier effective date, and, because the preponderance of the evidence is against the claim for an earlier effective date, the Board finds that entitlement to an effective date prior to January 29, 2016 for the award of service connection for CLL is not warranted. 38 U.S.C. § 5107(b). As the preponderance of the evidence is against the Veteran’s claim for an earlier effective date for the grant of service connection for CLL, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107. CUE – August 2016 RO Rating Decision As previously stated, the Veteran asserts that there was CUE in the August 2016 RO rating decision that did not assign an effective date prior to January 29, 2016 for the grant of service connection for CLL. The record indicates that the Veteran filed a new claim for benefits for this disability in June 2017. Then, later in June 2017, he submitted correspondence indicating that he was entitled to an earlier effective date for service connection. Taken together, this was construed as a notice of disagreement with regard to the August 2016 rating decision. As the June 2017 notice of disagreement was within a year of the August 2016 rating decision, the August 2016 rating decision is considered non-final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. 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. 38 C.F.R. § 3.105(a). 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. The Court has held that there is a three pronged test to determine whether CUE is present in a prior decision: (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 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, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Here, the Board finds that the Veteran’s appeal of the August 2016 RO rating decision that granted service connection for CLL renders that decision pertaining to this issue non-final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. As noted above, the issue of CUE applies only to final rating decisions. Thus, as the August 2016 RO rating decision regarding this issue has been rendered non-final, the Board finds that the question of CUE in the August 2016 RO rating decision, to the extent it assigned an effective date of January 29, 2016 for the grant of service connection for the Veteran’s CLL disability, has been rendered moot. Dismissal of the CUE motion is warranted. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105 (a). The Board acknowledges the RO’s decision to address the issue of CUE in an August 2018 rating decision. However, as previously discussed herein, the Board finds that the Veteran’s contention does not amount to CUE, as he does not allege, nor does the evidence suggest, that a formal or informal claim for benefits for CLL was submitted prior to January 29, 2016. Again, as the Veteran alleges medical malpractice, he should file a separate claim for VA medical malpractice. See 38 U.S.C. § 1151. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.