Citation Nr: 21042496 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-32 041 DATE: July 13, 2021 ORDER Entitlement to an effective date earlier than September 24, 2008, for the award of service connection for right hand injury of the long, ring, and little fingers, to include the matter of clear and unmistakable error (CUE) in a January 11, 2007, rating decision, is denied. Entitlement to an effective date earlier than November 18, 2011, for the award of service connection for degenerative arthritis and spondylosis with intervertebral disc syndrome of the lumbar spine, to include the matter of CUE in a January 11, 2007, rating decision, is denied. Entitlement to revision of a January 11, 2007, rating decision that denied service connection for an amputation of the right lower leg, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is denied. FINDINGS OF FACT 1. An application to reopen the claim of service connection for a right hand disability was received by VA on September 24, 2008. There were no prior unadjudicated claims. 2. An application to reopen the claim of service connection for a lumbar spine disability was received by VA on November 18, 2011. There were no prior unadjudicated claims. 3. The January 11, 2007, rating decision that denied entitlement to service connection for low back pain and amputation of the right lower leg, and confirmed and continued a previous denial of service connection for a right hand condition, status-post surgery with scars, became final because the Veteran did not perfect his appeal. 4. The RO considered the facts shown in the evidence of record and applied the correct law in the January 11, 2007, rating decision, and there is no error that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. 5. The Veteran has not alleged an error of fact or law in the January 11, 2007, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 24, 2008, for the award of service connection for right hand injury of the long, ring, and little fingers are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than November 18, 2011, for the award of service connection for degenerative arthritis and spondylosis with intervertebral disc syndrome of the lumbar spine are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The January 11, 2007 rating decision that confirmed and continued a previous denial of service connection for a right hand condition, status-post surgery with scars, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 4. The January 11, 2007 rating decision that denied entitlement to service connection for low back pain was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 5. The January 11, 2007 rating decision that denied entitlement to service connection for amputation of the right lower leg was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1989 to September 1993 with an additional period of Navy Reserve service. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2013, November 2013, and February 2016 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at September 25, 2015 and June 19, 2017 hearings held before a decision review officer (DRO) at the Los Angeles, California RO. Thereafter, the Veteran testified at an April 6, 2021 videoconference hearing held before the undersigned Veterans Law Judge (VLJ). Summaries and transcripts of the hearings are associated with the electronic claims file. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." See 38 U.S.C. § 5110(a). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. If the claim is filed within one year of separation of service, the effective date may be the day following separation from service if entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.304(b)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals pending on that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. As the claims in question were earlier than this, the amended provisions do not apply. Id. Under the law prior to the amendment, a claim was 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). An informal claim was any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Board notes that under 38 C.F.R. § 3.156(c), if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the file when VA first decided the claim, VA will reconsider the claim. By directing a reconsideration of the previously denied service connection claim, rather than a reopening, it places the Veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). The Veteran contends that earlier effective dates are warranted for the awards of service connection for a right hand disability and for a lumbar spine disability. At the April 2021 Board hearing, the Veteran testified that service treatment records and post-service VA records were not associated with the claims file such that a January 2007 rating decision that denied service connection for low back pain, and confirmed and continued a previous denial of service connection for a right hand injury, was not final. In support of his contention, the Veteran directs attention to 38 C.F.R. § 3.156(c) regarding the subsequent association of service department records. In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran's award of service connection for a right hand injury of the long, ring, and little fingers is the currently assigned September 24, 2008, the receipt date of the application to reopen the claim. The Board further finds that the appropriate date for the Veteran's award of service connection for degenerative arthritis with spondylosis and intervertebral disc syndrome of the lumbar spine is November 18, 2011, the receipt date of the application to reopen the claim for a low back disability. The evidence of record reflects that the Veteran submitted a claim of entitlement to service connection for a "right hand condition with surgery and scar" in an Application for Compensation (VA 21-526), which was received by the RO on February 24, 2004. The Veteran directed attention to his service treatment records in support of his claim. The RO, in a November 2004 rating decision, denied service connection for a right hand condition status-post surgery with scars. The Veteran did not timely appeal the adverse rating decision, or submit new and material evidence within one year of its promulgation. Thereafter, the Veteran submitted claims of entitlement to service connection for "low back pain" and to reopen the claim of service connection for a right hand disability in an Application for Compensation, received on August 17, 2006. The Veteran directed attention to his service treatment records regarding his treatment for the claimed disabilities, with reported onsets of 1990 for his low back disability and 1993 for his right hand disability. In a January 11, 2007 rating decision, the RO, in pertinent part, denied service connection for low back pain and confirmed and continued the previous denial of service connection for a right hand disability. The Veteran timely submitted a Notice of Disagreement in April 2007, but did not perfect his appeal to the Board upon the issuance of an April 2008 Statement of the Case. Thus, the January 2007 decision became final. The record subsequently reflects that the Veteran submitted applications to reopen the claims of service connection for a low back disability and right hand disability in a Statement in Support of Claim (VA 21-4138) and Application for Compensation, which were received on September 24, 2008. The RO, in an April 2009 rating decision, denied reopening of the claims of service connection for a low back disability and for a right hand disability. The Veteran, in pertinent part, explicitly expressed disagreement with the determination regarding his right hand disability, but not for his claimed low back disability. In a November 2013 rating decision, the RO awarded service connection for a right hand injury of the long, ring, and little fingers, with an initial noncompensable rating, effective September 24, 2008. In the interim, the Veteran, in pertinent part, submitted an Application for Compensation for service connection for "severe back pain," which was received by the RO on November 18, 2011. The RO, in an October 2013 rating decision, awarded service connection for degenerative arthritis with spondylosis and intervertebral disc syndrome of the lumbar spine, with an initial rating of 60 percent disabling, effective November 18, 2011. The Board acknowledges the Veteran's assertions that service and VA treatment records were not associated with the claims file at the time of the January11, 2007 rating decision. However, on the face of the January 2007 rating decision, the RO indicated that it reviewed active duty and reserve service medical records from August 18, 1989 to June 1, 1995, as well as VA treatment records from April 20, 2004 to September 1, 2006, treatment records from University of California Irvine, a traffic collision report, and legal documents concerning a motor vehicle accident. Consequently, the Board finds that the records in question were associated with the claims file at the time of the January 2007 rating decision. As such, provisions regarding the addition of service treatment records to the effective date of the award of service connection, pursuant to 38 C.F.R. § 3.156(c), are not for application in the instant case. Therefore, the January 2007 rating decision and the prior November 2004 rating decision were final. The Board finds that the Veteran's claim of service connection for a right hand disability has been continuously prosecuted from his September 2008 application to reopen the claim. Further, while the Veteran also sought to reopen the claim of service connection for a lower back disability in the same September 2008 application, he did not express disagreement with the adverse determination in the April 2009 rating decision. Consequently, the appellate stream ended, and the April 2009 rating decision became final with respect to the claimed lower back disability. The record reflects that the Veteran did not seek to reopen the claim of service connection for a lower back disability until the RO's receipt of an Application for Compensation on November 18, 2011. No prior unadjudicated claims were outstanding. As the respective dates of claims is over 10 years after his separation from service, the date of his separation from service cannot be used. 38 C.F.R. § 3.400 (b)(2). Therefore, the Board finds that the appropriate dates for the Veteran's awards of service connection for a right hand disability, and lumbar spine disability is September 24, 2008 and November 18, 2011, respectively. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The sole potential basis for earlier effective dates for the Veteran's awards of service connection for a right hand disability and a lumbar spine disability would be based on a finding of CUE in the January 2007 rating decision. Clear and Unmistakable Error The Veteran asserts CUE in a January 11, 2007 rating decision that denied entitlement to service connection for low back pain and amputation of the right lower leg, and confirmed and continued a previous denial of service connection for a right hand condition, status-post surgery with scars. The Veteran contends that the RO erroneously determined that he did not have right hand surgery. He further asserts that his service treatment records documented an in-service injury to his lower back. Concerning the amputation of the right lower leg, the Veteran contends that his Navy Reserve orders were lost. He contends that he was ordered to perform additional duties for his unit in preparation for overseas deployment. The Veteran noted that he was provided with orders to give to his civilian employer. On his way to his civilian employer following morning muster, the Veteran stated that he was involved in a motor vehicle accident that resulted in the amputation of his right lower leg. He noted that he was in uniform at the time. The Veteran maintains that he submitted his Navy Reserve orders along with additional evidence, to include hospital and other medical records. The Veteran contends that the RO did not properly consider all of his service treatment records in the adjudication of his claims for his lumbar spine disability and right hand disability. He asserts that his service treatment records documented the respective in-service injuries. Concerning his amputation, the Veteran asserts that his reserve orders were lost upon the submission of documentation in support of his claim. 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). A January 11, 2007 rating decision denied entitlement to service connection for low back pain and amputation of the right lower leg, and confirmed and continued a previous denial of service connection for a right hand condition, status-post surgery with scars. The Veteran submitted a Notice of Disagreement in April 2007. A Statement of the Case was rendered in April 2008, but the Veteran did not timely perfect his appeal to the Board. Thus, the January 11, 2007 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. 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. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The RO, in a January11, 2007 rating decision, denied service connection for low back pain and amputation of the right lower leg, and confirmed and continued a previous denial of service connection for a right hand condition, status-post surgery with scars. With regard to the low back, the RO determined that although there was a record of treatment in service for low back pain in 1990, no permanent residual or chronic disability subject to service connection was shown by service treatment records or demonstrated by evidence following service. The RO noted that at an August 1993 separation examination, the Veteran reported that the low back pain resolved and that no spinal abnormalities were detected by the examining physician. The rating decision further referenced a December 1993 Naval Reserves Report of Medical History form in which the Veteran responded "no" to recurrent back pain. The RO stated that there was no evidence submitted showing that a back disability existed from military service to the present. The RO determined that the record failed to show a chronic disability as a result of service. Concerning the amputation of the right lower leg, the RO noted that the Veteran was involved in a motor vehicle accident in November 2004. The rating decision indicated that the accident resulted in the traumatic amputation. The RO, however, stated that during a telephone conversation in 2006, the Veteran reported that the accident occurred when he was going home from a reserve duty drill weekend. The RO noted that it requested evidence from the Veteran showing that the accident occurred either while going to, or coming from, a reserve duty training period. The RO indicated that to date, it had not received that evidence from the Veteran. Consequently, the RO determined that service connection was not warranted as there was no evidence showing the disability was occurred in, or was caused by military service. Regarding the claimed right hand disability, the RO noted that the claim was previously denied in a November 2004 rating decision, which the Veteran did not appeal. It stated that in September 2006, it requested that the Veteran provide new and material evidence necessary to reopen the claim showing a permanent residual or chronic disability as a result of the in-service contusion. The RO indicated that to date, it had not received that evidence. The Veteran's arguments regarding whether his claims of service connection were warranted are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. The Board acknowledges that the RO erroneously indicated in its November 2004 rating decision (and reiterated in a January 2007 rating decision) that the Veteran did not undergo surgery to the right hand during active service, when in fact, the Veteran underwent incision and drainage procedures for his right hand injury as clarified by a July 2013 VA examiner. Such a misstatement, however, was not outcome determinative. As discussed above, the Veteran was ultimately denied due to the absence of a current disability. Service connection for a disability requires the existence of a current disability. Contrary to the Veteran's assertions, the Veteran's service and VA treatment records were before the RO at the time of its January 11, 2007 rating decision. As indicated on the face of the rating decision, the RO considered the Veteran's service treatment records, which included a period of Navy Reserve service, and VA and private treatment records in its adjudication of the claims. Moreover, "[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it." Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). The RO conceded that the Veteran had in-service injuries to his right hand and lower back. Concerning the former, as noted above, the Board notes that the claimed right hand disability was denied in a prior November 2004 rating decision due to the absence of a current disability. Indeed, medical evidence submitted subsequent to the November 2004 rating decision were of his treatment from and subsequent to his motor vehicle accident for his traumatic amputation of the right lower leg. To the extent that the Veteran endorsed lower back pain in the context of his treatment for his amputation, the Board is cognizant that at the time of the January 11, 2007 rating decision, it was established that pain alone, without a diagnosed or identifiable underlying malady or condition, did not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Treatment records associated with the claims file at the time of the January 2007 rating decision did not show a current disability of the lumbar spine. Further, private outpatient treatment records dated December 2005 noted that x-rays of the lower back did not reveal abnormalities in the lumbar spine. The associated treatment records subsequent to the earlier November 2004 rating decision also continued to reflect no complaints of or treatment for a right hand disability. Consequently, the RO appropriately applied the rules and regulations governing service connection in its denial of the right hand and lower back claims. Service connection for a disability requires the existence of a current disability. A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. To the extent that effective September 24, 2008 and November 18, 2011, the Veteran is now service-connected for a right hand disability and a lumbar spine disability, respectively, a determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the January 2007 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). Based upon the reasoning contained within the January 2007 rating decision, the RO did not commit clear and mistakable error based upon the record and the law that existed when the decision was made. The Board acknowledges the Veteran's argument that his Navy Reserve order was lost in the submission of his claim of service connection for amputation of the right lower leg. However, the Veteran seeks the benefit of the doubt that such an order existed. The reasonable doubt standard does not apply with respect to the question of whether a prior rating action contains CUE. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The record reflects that as recently as February 2018, attempts were made to obtain verification of the Navy Reserve orders in question. In March 2018, the Veteran was informed that attempts were made to obtain his reserve service records but could not be located and were unavailable for review. The Veteran was further informed that all efforts to obtain the needed information were exhausted and based on these facts, it was determined that further attempts to obtain the records would be futile. The Board notes that efforts to obtain the Veteran's reported Navy Reserve orders were documented. The Board further notes the Veteran reports that he relied to his detriment on others to handle the submission of evidentiary documentation in support of his claim of service connection, or that a copy of the order was misplaced. The Veteran's argument, however, which essentially constitutes a theory of entitlement to equitable relief, is not possible, as the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In summary, there is nothing in the record to support that the RO did not apply the appropriate law or did not have the correct facts before it at the time of its January 11, 2007 rating decision and, therefore, the Veteran's motions for revision of that decision on the basis of clear and unmistakable error must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.