Citation Nr: 21032662 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-20 416 DATE: May 27, 2021 THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a December 2003 rating decision that denied entitlement to service connection for swelling of the back of the brain. 2. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for hydrocephalus with syndrome of inappropriate anti-diuretic hormone (SIADH) and swelling of the brain. 3. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for surgical burr hole, right frontoparietal region. 4. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for obstruction of the sylvius as result of operation on the skull with endoscopic third ventriculotomy. ORDER Inasmuch as there was no clear and unmistakable error in a rating decision of December 2003 that denied entitlement to service connection for a brain disability, the request to revise that decision is denied. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for hydrocephalus with syndrome of inappropriate anti-diuretic hormone (SIADH) and swelling of the brain is denied. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for surgical burr hole, right frontoparietal region is denied. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for obstruction of the sylvius as result of operation on the skull with endoscopic third ventriculotomy is denied. FINDINGS OF FACT 1. In December 2003, the RO denied entitlement to service connection for a brain swelling, and the Veteran did not express disagreement or submit new and material evidence within one year. 2. It is not clear and unmistakable that the correct facts were not before the rating panel in December 2003 or that the rating decision contains an undebatable error that would have manifestly changed the outcome of the decision at that time with regard to the denial of entitlement to service connection for a brain disability. 3. The first correspondence submitted to VA to reopen a claim for service connection for brain disabilities was received June 27, 2007. CONCLUSIONS OF LAW 1. The December 2003 decision denying service connection for a brain disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2020). 2. The December 2003 rating decision denying service connection for a brain disability did not contain clear and unmistakable error. 38 U.S.C. §§ 5109A; 38 C.F.R. §§ 3.105 (a), 20.1403. 3. The criteria for entitlement to an effective date earlier than June 27, 2007 for the award of service connection for the hydrocephalus with syndrome of inappropriate anti-diuretic hormone (SIADH) and swelling of the brain, surgical burr hole, right frontoparietal region, and obstruction of the sylvius as result of operation on the skull with endoscopic third ventriculotomy are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to December 1994. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at an October 2019 videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board remanded the issues on appeal for additional development in March 2018 and again in January 2020. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for hydrocephalus with syndrome of inappropriate anti-diuretic hormone (SIADH) and swelling of the brain is denied. 2. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for surgical burr hole, right frontoparietal region is denied. 3. Entitlement to an effective date prior to June 27, 2007 for the grant of service connection for obstruction of the sylvius as result of operation on the skull with endoscopic third ventriculotomy is denied. In the claim certified to the Board, the Veteran asserts in multiple statements that he believes he is entitled to earlier effective dates for service connection of his three skull-related disabilities: hydrocephalus with SIADH, surgical burr hole, and obstruction of the sylvius, all currently effective from June 27, 2007. He asserts that an effective date for all three disabilities should be July 23, 2003, the date he asserts was his initial claim for those three disabilities. See, e.g., February 2017 notice of disagreement. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). I. Final Decisions In June 1979, the Veteran filed a claim for service connection for his skull disabilities. In December 2003, the RO denied the Veteran's claim. The Veteran was notified of the rating decision and of his appellate rights, but he did not express disagreement or provided new and material evidence within one year of the denial. Therefore, the December 2003 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.302, 20.1103. In June 2007, the Veteran filed an application to reopen his claim for entitlement to service connection for the above listed disabilities. The claims were eventually granted in a December 2016 rating decision and the RO assigned effective dates of June 27, 2007 for his disabilities. Here, the Board is presented with prior final decisions. Between the final decisions and the claim to reopen, there were no claims, informal claims or intent to file claims for his brain disability, despite the Veteran's characterization that he had continually appealed the issue since his claim in September 2003. See October 2019 Board hearing. In essence, the appellant seems to be attempting to re-litigate the prior final decision. This is prohibited. Rudd v. Nicholson, 20 Vet. App. 296 (2006). At the Court has noted, such a possibility vitiates the rule of finality. To this extent, the appeal is dismissed. II. Clear and Unmistakable Error (CUE) In the October 2019 Board hearing, the Veteran asserted that there was clear and unmistakable error in the December 2003 rating decision which denied his claims for his brain injury disabilities. In its previous January 2020 remand, the Board found that the issue of a CUE had been raised and remanded the matter back to the AOJ to determine whether there was a CUE in the December 2003 rating decision. The RO issued a rating decision and Supplement Statement of the Case (SSOC) in September 2020 indicating that there was no evidence of CUE in the December 2003 rating decision, and that the Veteran had not identified with any specificity said CUE. The Veteran continues to contend that the December 2003 rating decision contained CUE. Generally, CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997). Previous determinations that are final and binding (including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues) will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7105(c), 7111(a) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.1403 (2020). The appellant bears an "extra-heavy burden" when moving or requesting revision of a prior final decision based on CUE, as "[a] final decision is entitled to a strong presumption of validity." Berger v. Brown, 10 Vet. App. 166, 169 (1997). 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo v. Brown, 6 Vet. App. 40 (1993). 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, ipso facto, [CUE]. Id. at 43-44. The failure to fulfill the duty to assist also cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 424 (1996). The Court has established a three-prong test defining CUE, which is as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator 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 adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). "In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id. See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not clear and unmistakable error. See Damrel, 6 Vet. App. at 245-246. The record in the appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). A finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). When there is evidence both favorable and unfavorable on the issue, it is impossible for a Veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). CUE motions are not "appeals," so they are not subject to the Parts 19 or 20 of Title 38 of the C.F.R. regarding the processing of appeals, and the benefit-of-the-doubt rule under 38 U.S.C. § 5107(b) does not apply. 38 C.F.R. §§ 20.1402. A review of the Veteran's service treatment records does not reveal an injury to his skull. Indeed, the Veteran does not argue that his brain injury manifested itself in service, but that it developed later as the result of exposure to toxins in service. See June 2007 claim. The Veteran has not actually submitted any information that alleges a specific error of fact or law in the December 2003 rating decision. Instead, the Veteran contends that because he filed his initial claim for service connection for brain swelling in September 2003, and was subsequently found to be service connected for brain disabilities, that the law compels the Board to assign an earlier effective date of September 2003. In support of his argument, the Veteran has pointed to a February 2016 Court Memorandum Decision, which found that the Board had erred in its September 2014 decision to deny service connection for his brain disabilities. Contrary to the Veteran's understanding or assertions, the decision did not find clear and unmistakable error in any rating decision. To the extent that the Veteran's claim encompasses a request for a reweighing of the evidence, such is impermissible in a CUE claim. Luallen v. Brown, 8 Vet. App. 92 (1995). The evidence at the time of the December 2003 rating decision included evidence of a brain swelling disability. See September 2003 VA treatment note (noting "aqueductal stenosis"). In the December 2003 rating decision, the RO denied the Veteran's claim for service connection for swelling on the back of the head. The RO found that there was no evidence of a head condition during service, and that the Veteran's disability was only found in September 2003. At the time of that decision, there was no positive nexus opinion of record, and no service records showing a head injury in service. Additionally, at the time of the decision, the Veteran had not identified an in-service event that he believed caused his brain swelling. See October 2003 Claim. Therefore, the Board finds that the Veteran's contention that the December 2003 rating decision contained CUE amounts to a disagreement with how the evidence was weighed. The Court has held that allegations that previous adjudications have improperly weighed or evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994); see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). Further, the Federal Circuit has explicitly held that a "breach of the duty to assist cannot constitute CUE." Cook, 318 F.3d at 1344. The Federal Circuit explained that where VA fails to fulfill its duty to assist in the development of a claim, such a failure leads only to an incomplete record. Id. at 1346. (Continued on the next page.) In light of the foregoing, the Board finds that the rating decision of December 2003 a reasonable exercise of rating judgment, adequately supported by the evidence then of record and the statutory and regulatory provisions extant at that time were correctly applied. Therefore, on this record, the Board concludes that a valid claim of CUE has not been presented with regard to the December 2003 rating decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.