Citation Nr: 21012280 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-12 507 DATE: March 4, 2021 ORDER Entitlement to an effective date earlier than March 21, 2015 for the grant of a permanent and total (P&T) disability rating is denied. FINDING OF FACT Evidence from the Veteran’s private physician dated March 21, 2015 is the earliest indication that her service-connected lupus, rated as 100-percent disabling, was permanently and totally disabling. CONCLUSION OF LAW The criteria are not met for entitlement to an effective date earlier than March 21, 2015 for the award of the P&T disability rating. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.160, 3.400, 4.3, 4.7.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to March 2004, from June 2006 to July 2007, from April to July 2008, and from October 2008 to August 2009. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim for an earlier effective date during a hearing in November 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Entitlement to an effective date earlier than March 21, 2015 for the grant of a P&T disability rating During her rather recent November 2020 hearing before this Board, the Veteran contended that her P&T disability rating should date back to her original filing on July 27, 2009, so essentially back to the time of her discharge from the military in August 2009. She testified that she was treated in service and filed her initial claim rather immediately after returning from Southwest Asia or certainly within a year of her discharge from service. She said she had been diagnosed with lupus (an autoimmune disorder) and sent home to be treated through VA, and she adds that VA doctors mistakenly told her initially that she did not have lupus, so that is why she may not have done anything with the claim immediately after that because in her mind there was no reason to (according to what she had been told by the VA doctors that had evaluated her). She therefore does not feel it is right or just to now penalize her for their initial misdiagnosis. In other testimony during her hearing, and as reason or justification for why there is a “gap” in the chain of events and supporting evidence, she explained that it is because she did not have health insurance initially after service, so she could not get all the treatment and workup that she needed to determine what exactly was wrong with her, health wise. The P&T rating for the Veteran’s service-connected lupus (autoimmune disease) is effective from March 21, 2015. The Board already, in a July 2020 decision, denied her claim for an effective date earlier than March 21, 2015 for her award of Chapter 35 Dependents’ Educational Assistance (DEA), but she contends that the letter used to establish the effective date actually inferences that she was P&T disabled earlier than that – i.e., since her initial filing in July 2009 but certainly since November 2011 (the effective date of her award of disability benefits from the Social Security Administration (SSA) or at least since October 28, 2013 (the effective date of the 100 percent schedular rating for her lupus)). Generally, the effective date of an award of increased compensation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this general rule is when evidence shows that a factually ascertainable increase in disability occurred during the one-year period immediately preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). By definition, a claim for a P&T disability rating is a type of increased compensation claim, thus, the effective date rules for an increased compensation claim apply to a P&T disability rating claim. A total disability rating is assigned when a Veteran's service-connected disabilities are 100-percent disabling under the VA Rating Schedule or when the Veteran is unemployable due to service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4,15, 4.16.   Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). Just as she testified about during her hearing, records confirm the Veteran filed a claim of entitlement to service connection for lupus on July 27, 2009. However, VA treatment records showed that her lab results in September 2009 came back negative for this autoimmune disease, so her claim for service connection for lupus initially was denied in a February 2010 rating decision. Importantly, she did not appeal that decision or submit new and material evidence within a year of receiving notification of it. Consequently, that February 2010 rating decision became final and binding on her based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. More than one year later, on October 29, 2013, the Veteran filed a new claim for service connection for lupus. And, a subsequent medical opinion from her private treating physician, dated March 2, 2014, explained that, after reviewing some of her medical records showing a history of low white blood cell count, skin biopsy consistent with lupus, photosensitivity, and tender joints, she now met the criteria for this diagnosis.   In a letter dated April 26, 2014, the Veteran’s treating physician observed the Veteran had severe compromise of her function as a result of lupus. He noted that she had been unable to do any work for over 17 months and had pain diffusely that was disabling and could not do any regular work. In September 2014, VA received a copy of an SSA disability determination. SSA granted disability benefits effective from November 2011. The disability determination was based on severe impairments – including owing to common variable immune deficiency (CVID, i.e., lupus), degenerative disc disease (DDD), affective disorder, and anxiety disorder. A subsequent December 2014 VA examiner conversely concluded the Veteran’s lupus did not impact her ability to work. Nevertheless, a January 2015 VA rating decision granted service connection and a 100 percent disability rating for the lupus retroactively effective from October 28, 2013, so back to the date when the Veteran had refiled her claim for service connection for this autoimmune disease (i.e., petition to reopen this claim). This is significant because the P&T rating she eventually received derives from the 100 percent schedular rating for her lupus. And when, as here, a prior decision on a claim (i.e., the one in February 2010) becomes final and binding on a Veteran, such as because it was not timely appealed, the effective date of a subsequent award of service connection is the date of receipt of the reopened claim, not instead the date of receipt of the original claim. See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) explained in Sears at 248 that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." For the Veteran to be awarded an effective date based on an earlier claim, he or she must show clear and unmistakable error (CUE) in the prior denial of the claim. See Flash v. Brown, 8 Vet. App. 332, 340 (1995). That January 2015 rating decision explained the 100 percent rating being assigned for the lupus was not at that time considered permanent since there was possibility of improvement, so it would be subject to a future review examination. However, a March 21, 2015 letter from the Veteran’s private physician affirmed the Veteran had ongoing symptoms affecting diffuse organ systems – including owing to arthritis, rash, difficult fatigue, low blood counts, and immune deficiency. This commenting physician concluded these problems and resulting impairments were likely to continue throughout the Veteran’s lifetime, inhibiting her ability to ever return to gainful employment. In a claim received by VA on May 27, 2015, so less than a week later, the Veteran consequently requested a P&T rating. A September 2015 rating decision granted a P&T disability rating retroactively effective from March 21, 2015, the date of the Veteran’s private doctor's statement indicating her condition and consequent impairment likely would continue throughout her lifetime. That is the earliest indication of record that her lupus not only was totally (i.e., 100-percent) disabling but also that it would continue to be throughout her lifetime and consequently inhibit her from ever returning to gainful employment (i.e., was permanent). The RO, thus, correctly made the P&T award retroactively effective from the date of receipt of that doctor’s statement because it was received within a year immediately preceding the Veteran’s claim for a P&T rating (in fact, less than a week prior to her claim) and because it provided the needed indication (“factually ascertainable”) that, as of that date, she was P&T owing to her service-connected lupus. Harper, 10 Vet. App. at 126. The Board has considered the Veteran’s contention that her P&T award, instead, should date back to July 27, 2009, when she initially filed her claim (while still in service) or to August 2009 when her service ended. But, to reiterate, she did not appeal the initial February 2010 rating decision earlier considering and denying service connection for her lupus. Hence, as an unfortunate consequence, the only way of vitiating the “finality” (res judicata) of that prior decision is by collaterally attacking it on the grounds that it involved CUE. There is no basis for a “free-standing” earlier effective date claim for matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006).   The Veteran has not alleged CUE in that earlier February 2010 decision, certainly not pled this with the required specificity and has not shown why that prior decision was fatally flawed or egregious – if only considering the evidence of record at the time of that decision (meaning not also evidence more recently submitted or otherwise obtained). 38 C.F.R. § 3.105. CUE is a very specific and rare kind of error of 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 have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc)). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. See Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). 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. CUE is a collateral attack on an otherwise final rating decision by the agency of original jurisdiction (AOJ) which in this instance is the local RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). There is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a Veteran who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).   The Veteran cites what she characterizes as VA’s initial misdiagnosis as reason for assigning an earlier effective date back to her initial claim, but the fact remains that her lab results in September 2009 came back negative, and on that basis it was determined she did not then have lupus. That lab testing was an objective measure of what would have been considered sufficient finding to make this diagnosis, so even accepting that she later received this diagnosis – especially since it was based on other evidence more recently submitted or obtained, is not tantamount to concluding that lab result was flawed to point of concluding it was a misdiagnosis, i.e., CUE. Additionally, the Board has considered the Veteran’s assertion that October 28, 2013, the effective date of her 100 percent schedular rating for her lupus, also should be the effective date of her P&T disability rating. But it must be pointed out that, although she met the schedular criteria for a 100 percent rating for her lupus prior to March 21, 2015, permanence of a total disability rating will be taken to exist when such impairment is reasonably certain to continue at a total level throughout the life of the disabled person. And, contrary to her contention that her P&T disability rating should precede her March 21, 2015 statement from her private physician, that March 21, 2015 letter is the earliest competent and credible (i.e., probative) indication her lupus was not just totally disabling (hence, the reason it was rated as 100-percent disabling) but also that it was permanently and totally disabling (i.e., P&T). Lastly, the award of SSA disability as of November 2011 was more than a year before the Veteran re-filed her claim of entitlement to service connection for her lupus on October 28, 2013, which also as mentioned is the effective date of the 100 percent (i.e., total) rating for her lupus, from which her P&T rating derives. It therefore follows that she cannot be rated as P&T disabled from a date even before when she was determined totally disabled.   In deciding this appeal, the Board has considered applying the benefit-of-the-doubt doctrine. But since, for the reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim, this doctrine does not apply, and her claim of entitlement to an effective date earlier than March 21, 2015 for the award of her P&T disability rating must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.