Citation Nr: A21009922 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 200309-122272 DATE: May 27, 2021 ORDER Entitlement to an effective date of November 30, 1990 for service connection for degenerative disc disease, lumbar spine, intervertebral disc syndrome and lumbosacral strain is granted. FINDINGS OF FACT 1. The Veteran filed his original claim of service connection for a back disability on November 30, 1990. The RO issued a rating decision denying service connection in November 1991. At the time, service treatment records were not associated with the claims file. 2. In March 1995, January 1997, and February 2007, February 2009, July 2010 the RO denied reopening of the previous denial of service connection for a back disability. 3. Service treatment records were associated with the claims file in June 2006. 4. In April 2015, the Board granted service connection for the lumbar spine disability. 5. In a June 2015 rating decision, the RO assigned an effective date of August 11, 2008. 6. In June 2016 correspondence and July 2016 formal claim, the Veteran sought an earlier effective date based on CUE. 7. The June 2015 rating decision that assigned the effective date became final because the Veteran did not file a notice of disagreement within the required time period. 8. The RO incorrectly applied the provisions of 38 C.F.R. § 3.156(c) and 38 C.F.R. § 3.400 in the assignment of the Veteran's effective date. CONCLUSION OF LAW The criteria for an effective date of November 30, 1990 for service connection of degenerative disc disease, lumbar spine, intervertebral disc syndrome and lumbosacral strain have been met. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.105, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1975 to June 1978 and from October 1978 to July 1989. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. CUE The Veteran seeks revision of the June 2015 rating decision that assigned an effective date in 2008 for service connection for the Veteran's lumbar spine disability. 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 June 2015 rating decision became final because the Veteran did not file a notice of disagreement (NOD) within a year of the decision. 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 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 adjudication 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. 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 the 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 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 the argument 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. Veteran's Contentions The Veteran contends that there was CUE in the assignment of his effective date of service connection for his back disability. More specifically, he asserts that the previous rating decisions prior to the grant of service connection did not contain any service treatment records. Ultimately, once service treatment records were associated with the claims file, service connection was granted by the Board. As a result, the RO should have assigned an effective date earlier than August 11, 2008. Analysis The Board finds that revision based on CUE is warranted because the RO erred in June 2015 when it assigned an effective date of August 11, 2008 for the Veteran's lumbar spine disability. The Veteran filed his original claim of service connection for a back disability on November 30, 1990. The RO issued a rating decision denying service connection in November 1991 but noted that on examination the Veteran was diagnosed with having a lumbar strain. The RO denied the claim noting that there were no in-service complaints of back injuries. At the time, service treatment records were not associated with the claims file. Subsequently, in March 1995, January 1997, and February 2007, February 2009, July 2010 the RO denied reopening of the previous denial of service connection for a back disability. Service treatment records were associated with the claims file in June 2006. In April 2015, the Board granted service connection for the lumbar spine disability. As noted above, the RO assigned the effective date from the grant of service connection in a June 2015 rating decision. Under 38 C.F.R. § 3.156 (c), if relevant service treatment records which were not previously of record are obtained then the underlying decision will not be final. As noted in the April 2015 Board decision, the service treatment records associated with the claims file directly dealt with the Veteran's back claim and the missing in-service injury element. See also Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2017). The April 2015 Board decision found that one service treatment record was located. This record noted that the Veteran was seen for possible strained muscle LLQ x 3 days. The impression was noted as a muscle strain of the lower quadrant (abdomen) and the Veteran was limited to lifting no more than 10 pounds. A notation from March 1989, although blank, also noted that it was a follow up visit for physical therapy associated with his back pain. See April 2015 Board decision. As noted by the April 2015 Board decision, these service treatment records were relevant and supported the Veteran's earlier lay statements regarding his in-service injury to his back. Thus, the provisions of 3.156(c) are applicable. The RO last considered the Veteran's substantive claim of service connection for a back disability in a November 1991 rating decision. All the subsequent rating decision denied reopening of the back disability claim, and thus could not constitute a "readjudication" under 3.156(c) even after the receipt of the new service records. Further, the evidence of record at the time of the November 1991 rating decision shows that the Veteran was diagnosed with a lumbar strain. Thus, when assigning the effective date of service connection for the lumbar spine disability in June 2015, the RO should have applied the provisions of 38 C.F.R. §§ 3.156, 3.400. Applying these provisions would have resulted in the conclusion that new service treatment records required readjudication of the claim, and a determination that entitlement arose prior to the time the Veteran filed his original claim of service connection on November 30, 1990. Thus, the date of his original claim is the correct effective date for assignment. Thus, the Board finds that revision based on CUE is warranted and entitlement to an earlier effective date is warranted. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.