Citation Nr: 21030690 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-38 598 DATE: May 19, 2021 ORDER Entitlement to an effective date earlier than March 11, 2011 for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. July 1999, January 2000 and June 2001 rating decisions previously considering and denying service connection for tinnitus are final and binding determinations based on the evidence then of record since not appealed and since new and material evidence concerning this claim was not actually or constructively received during the appeal period. 2. On March 11, 2011, the Veteran filed a petition to reopen this claim based on new and material evidence, and the claim later was granted in an April 2016 rating decision with the award retroactive to the date of receipt of his petition to reopen this claim. 3. He has not shown with the required specificity any clear and unmistakable error (CUE) in any prior decision considering and denying the claim, so he has asserted what amounts to a "freestanding" claim for an earlier effective date. CONCLUSION OF LAW The criteria are not met for an effective date earlier than March 11, 2011 for the grant of service connection for tinnitus. 38 U.S.C. §§ 5103, 5109A, 5110, 7105; 38 C.F.R. §§ 3.105, 3.156, 3.400, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1993 to March 1997. In April 2016, the Board of Veterans' Appeals (Board/BVA) determined there was new and material evidence to warrant reopening the Veteran's claim of entitlement to service connection for tinnitus. The Board also then proceeded to grant this claim for service connection for tinnitus on its underlying merits. Later that same month, so also in April 2016, the Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) implemented the Board's grant of service connection for tinnitus and assigned a 10 percent rating for this disability retroactively effective from March 11, 2011. This is the maximum permissible schedular rating for tinnitus. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, Diagnostic Code 6260. However, the Veteran appealed for an earlier effective date for the grant of service connection for this disability, which is another "downstream" issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran testified in support of his claim for an earlier effective date during a February 2021 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. During his hearing, the Veteran for the first time raised the issue of CUE in prior July 1999, January 2000, and June 2001 RO rating decisions previously considering and denying this same claim as a means of collaterally attacking those prior decisions and vitiating their "finality" (res judicata), i.e., final and binding effect, since admittedly not appealed. Once a decision becomes final and binding, such as because it was not appealed and there was no new and material evidence actually or constructively received during the appeal period, it may only be revised by showing it involved CUE. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.105, 3.156, 3.160(d), 20.200, 20.1103. 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. Moreover, CUE must be plead with specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). When questioned during his hearing about why there was CUE in those prior three decisions in July 1999, January 2000, and June 2001, the Veteran responded that he was unrepresented at that time and did not know much about the VA claims process and system and, consequently, simply gave up owing to his frustration with his claim repeatedly not being granted. But none of that, even if true, is a mitigating circumstance or reason to find CUE in those earlier decisions considering and denying his claim. The Board also does not in any event have jurisdiction to consider, in the first instance, this CUE allegation that was never presented to and adjudicated by the RO (AOJ). See Jarrell v. Nicholson, 20 Vet. App. 326, 331 (2006); citing Godfrey v. Brown, 7 Vet. App. 398 (1995) (Board lacks jurisdiction over claim not first presented to and adjudicated by the RO). Further, a claim of CUE must be pled in writing and in accordance with specific procedures, to include specifying the Veteran and alleged CUE. See 38 C.F.R. § 3.105a(1)(vii). There is no indication of such a pleading on file. If the Board were to accept the hearing testimony as a sufficient pleading and preemptively adjudicate, and deny, such a claim, this would be prejudicial to the Veteran since he would lose one level of review of the claim to the extent on this premise ("one bite of the apple"). The Veteran, or his representative, may file a supplemental claim of CUE and show why those earlier decisions were fatally flawed or egregious and, therefore, manifestly changed the outcome of those prior decisions. See Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). If he fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). Entitlement to an effective earlier than March 11, 2011 for grant of service connection for the tinnitus When, as here, prior decisions denying the claim (in July 1999, January 2000, and most recently in June 2001) have become final and binding, since not appealed and no other exception to finality, 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). In Sears, the Court explained 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." Because the most recent June 2001 rating decision is final and binding, any later action to alter that decision would constitute a "freestanding" earlier effective date claim, which simply is not permissible absent a showing of CUE. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). As already explained, no claim of CUE is presently before the Board. Therefore, since the Veteran filed his petition to reopen his claim for service connection for tinnitus on March 11, 2011, that is the correct effective date for his award of service connection for this disease. Consequently, his claim for an earlier effective date is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.