Citation Nr: 21012338 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-40 790 DATE: March 4, 2021 ORDER Entitlement to an earlier effective date of May 13, 2004 for the award of service connection for sleep apnea based on a finding of clear and unmistakable error in a May 2008 rating decision is granted. FINDINGS OF FACT 1. The Veteran was denied service connection for sleep apnea in an October 2005 rating decision. 2. Within a year of the October 2005 decision, new service records were associated with the claims file. 3. The statutory or regulatory provisions governing effective dates then extant at the time were not correctly applied in the May 2008 or January 2009 rating decisions, and the failure to correctly apply the laws and regulations manifestly changed the outcome of those rating decisions. CONCLUSIONS OF LAW 1.The May 2008 rating decision that assigned an effective date of August 3, 2007 for the award of service connection for sleep apnea and the January 2009 rating decision that confirmed and continued the effective date of the award were clearly and unmistakably erroneous (CUE). 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2.The criteria for an effective date of May 13, 2004 for the award of service connection for sleep apnea have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to August 1975 and from May 1978 to January 1989. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a March 2015 rating decision. A hearing was held by the undersigned Veterans Law Judge in March 2019. Procedurally, the Veteran originally filed a claim for service connection for sleep apnea that was received by VA on May 13, 2004. His claim was denied in an October 2005 rating decision. In February 2006, service treatment and personnel records were associated with the claims file. In correspondence received by VA on March 24, 2006, the Veteran requested continuation of his reopened claim dated May 13, 2004. An April 2007 rating decision deemed the claim reopened yet still denied the claim, finding that the evidence continued to show that the condition was not incurred in service. In August 2007, the Veteran submitted a medical opinion from a physician, Dr. L, establishing an in-service incurrence. A May 2008 rating decision granted the claim for service connection, assigning August 3, 2007 as the effective date. The Veteran submitted correspondence in July 2008 contending an earlier effective date was warranted; his claim was denied in a January 2009 rating decision. The Veteran did not appeal, nor was relevant evidence associated with the claims file within a year of the rating decision. Thus, the January 2009 and May 2008 rating decisions became final. The Veteran filed for reconsideration of the May 2008 rating decision based on a CUE motion in December 2013. The claim was denied in a March 2015 rating decision, and he appealed to the Board. In a November 2019 decision, the Board found that CUE was committed in the May 2008 decision and assigned March 24, 2006 as the proper effective date. In October 2020, the Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand by the parties. In the Motion, while not disturbing the favorable finding of the earlier assigned effective date, the parties found the November 2019 decision to be internally inconsistent and failed to address the application of 38 C.F.R. § 3.156(b) and (c). Thus, the November 2019 decision was vacated and remanded and has now returned to the Board. The Veteran asserts that there is CUE in the May 2008 rating decision that assigned the effective date of August 3, 2007. He contends that the October 2005 rating decision denied his claim based on the unavailability of his service records. The rating decision included the following note: “If your service medical records are found at a later date, and if service connection is warranted for any of these claimed conditions, service connection will be granted from the original date of claim.” Upon learning that VA did not have his service records, the Veteran submitted his personal copies of service records he had obtained in 1992 pursuant to a FOIA request. The Veteran also emphasized that the medical opinion by Dr. L submitted in August 2007 was based on a review of his service records. Ultimately, he believes the appropriate effective date is May 13, 2004 as his claim was in continuous pursuit until the grant of service connection. 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 May 2008 rating decision assigned August 3, 2007 as the effective date and a January 2009 rating decision denied the Veteran’s claim for an earlier effective date. As stated above, the Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the rating decisions 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. 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). The Board will therefore adjudicate the merits of his claims. 38 C.F.R. § 3.156(b) and (c) are both applicable in the matter at issue as new and material service records not previously of record were associated with the claims file prior to the finality of the prior decision (in this case, the October 2005 rating decision). 38 C.F.R. § 3.156(b) provides that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(c)(1) provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(3) provides that an award made based all or in part on the relevant official service department records identified in 38 C.F.R. § 3.156(c)(1) is effective on the date that entitlement arose or the date that VA received the previously decided claim, whichever is later, or such other date as may be authorized by VA regulations applicable to the previously decided claim. Section 3.156(c) serves to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim. Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014). 38 C.F.R. § 3.156(b) and (c) both essentially require reconsideration of claims when their respective provisions are met; § 3.156(c) expressly states the claim will be reconsidered while § 3.156(b) states that “new and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” The RO committed an error of law in its misapplication of 38 C.F.R. § 3.156(c) as it appears to consider the March 2006 correspondence as a claim to reopen based on new and material evidence pursuant to 38 C.F.R. § 3.156(a) rather than reconsidering the merits of the claim in light of new evidence, to include relevant service records. Both §§ 3.156(b) and (c) provide for an effective date of May 13, 2004 in this case. Under 38 C.F.R. § 3.156(b), as the service records were received prior to the expiration of the appeal period, it is considered as having been filed in connection with the claim pending at the beginning of the appeal period, which is May 13, 2004. In other words, evidence was added to the claims file before the decision became final. While the April 2007 rating decision continued to deny the claim, the claim remained pending on appeal until the May 2008 decision which granted service connection. Therefore, as the claim remained pending from the date of claim to the grant of service connection, the correct effective date would be the date of claim. Under § 3.156(c)(3), if an award is based all or in part on the relevant service records added to the file, the effective date is the date entitlement arose or the date that VA received the previously decided claim, whichever is later. Here, while the April 2007 decision continued to deny the claim, in August 2007, a physician, based in part on the review of the service records, found that the Veteran’s sleep apnea was incurred in service. Based on this medical opinion, service connection was granted. As the medical opinion was based in part on the service records, the Board finds that the award of service connection is, at least in part, based on the service records associated with the claims file in 2006. As the Veteran’s sleep apnea arose in service and he was diagnosed prior to the date of claim, the date that VA received the previously denied claim would be the later date and, thus, the appropriate effective date. In sum, the May 2008 rating decision was clearly and unmistakably erroneous as the statutory or regulatory provisions in existence at the time were incorrectly applied, and the correct effective date for service connection for sleep apnea is May 13, 2004. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.