Citation Nr: 21031422 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-17 776 DATE: May 21, 2021 ORDER Entitlement to an earlier effective date of June 3, 2009 for service connection for right lower extremity radiculopathy is granted. Entitlement to an earlier effective date of June 3, 2009 for radiculopathy of the left lower extremity is granted. FINDINGS OF FACT 1. A February 2009 rating decision denied service connection for right and left leg disabilities. The Veteran did not appeal the February 2009 rating decision. 2. The February 2009 rating decision was reasonably supported by the evidence then of record, was consistent with existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. 3. A claim for an increased rating for a lumbar spine disability was received on October 16, 2009. The claim was adjudicated in an unappealed March 2010 rating decision. New and material evidence was received within one year of the March 2010 rating decision, and the decision did not become final. 4. A diagnosis of bilateral lower extremity radiculopathy was factually ascertainable on June 3, 2009. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of June 3, 2009, but no earlier, for the award of service connection for right lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an earlier effective date of June 3, 2009, but no earlier, for the award of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1984 to October 2008. In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. The Board previously remanded this matter for additional development in May 2020. Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (b)(1). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400 (o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error (CUE); in short, in the absence of CUE, a final and binding RO decision will be accepted as correct. The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date. Flash v. Brown, 8 Vet. App. 332 (1995). 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). In this case, a February 2009 rating decision denied service connection for right and left leg disabilities. The Veteran did not file a timely Notice of Disagreement to the rating decision challenging this determination and did not submit new and material evidence within one year of the decision. Thus, the February 2009 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. Appx 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Entitlement to an earlier effective date for service connection for right and left lower extremity radiculopathy A February 2015 rating decision granted service connection for radiculopathy of the right and left lower extremities, effective from December 9, 2014. The Veteran contends that an earlier effective date is warranted. At the Board hearing, the Veteran testified that he reported radiculopathy at a February 2008 VA examination and has had the same symptoms since then. He contends that there was clear and unmistakable error in the February 2009 rating decision that denied service connection for a leg disability. A claim for service connection for bilateral leg disabilities was received on May 7, 2008. A February 2009 rating decision granted service connection for a lumbar spine disability and denied service connection for a bilateral leg disability. The Veteran was notified of the rating decision in a February 2009 letter. The Veteran did not submit a notice of disagreement to the February 2009 rating decision and did not submit new and material evidence within a year of the decision. Therefore, the February 2009 rating decision is final. The Veteran contends that revision of the February 2009 decision is warranted based on CUE. The Board finds that revision of the February 2009 rating decision on the basis of CUE is not warranted. The February 2009 rating decision found that the Veteran complained of bilateral lower extremity weakness in service and was diagnosed with peripheral neuropathy. The rating decision found that the Veteran did not have any other treatment for a leg disability in service and did not have complaints or findings of leg pathology on VA examination. The RO found that his leg disability was acute and chronic, as there was no permanent or chronic residual disability. The Board acknowledges the conflicting medical evidence available at the time of the February 2009 rating decision. The Veteran's disagreement as to how these conflicting medical determinations were weighed does not constitute CUE. As the correct facts were before the adjudicator and the applicable law was correctly applied, the Board finds no CUE in the February 2009 rating decision. Thus, the Veteran's motion for revision of the rating decision based on CUE is denied. The Board will now consider whether the evidence provides a basis for an earlier effective date for service connection for radiculopathy of the lower extremities. Following the February 2009 rating decision, additional service treatment records were received in September 2009. The service treatment records that were received in September 2009 were duplicative of evidence already received and considered at the time of the February 2009 disallowance of the claim. See Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017) (accepting VA's interpretation that the term "relevant" as used in 38 C.F.R. § 3.156 (c) means noncumulative and pertinent to the matter at issue in the case). Therefore, although additional service treatment records were received in September 2009, such were duplicative of prior records. Thus, 38 C.F.R. § 3.156 (c)(1) is inapplicable, and the February 2009 rating decision is final. A claim for an increased rating for a low back disability was next received on October 16, 2009. A claim for an increased evaluation for a back disability also includes consideration of associated neurological complications. A December 2009 VA examination showed a diagnosis of lumbar spondylosis with subjective, but not objective, evidence of lumbar radiculopathy. A March 2010 rating decision granted a 40 percent rating for a lumbar spondylosis. New medical records received in April 2010 show a complaint of back pain radiating to the legs. A June 2009 private treatment record reflects diagnoses of nerve impingement and sacroiliac arthritis and arthritis with osteophytes, possibly causing nerve compression that would radiate to the hips and legs. VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). 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. 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The records received in April 2010 are new and material. Therefore, the March 2010 rating decision did not become final, and the October 2009 claim was still pending at the time of the December 2014 claim for an increased rating. According to 38 C.F.R. § 3.400 (o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. See 38 C.F.R. § 3.400 (o)(2). The diagnosis of radiculopathy was factually ascertainable in the year prior to the claim, based on the June 2009 treatment records containing the diagnoses of nerve impingement and sacroiliac arthritis and arthritis with osteophytes, possibly causing nerve compression that would radiate to the hips and legs. Those records were received by VA in April 2010. Therefore, the appropriate effective date for service connection for right and left lower extremity radiculopathy is June 3, 2009. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.