Citation Nr: 22008809 Decision Date: 02/15/22 Archive Date: 02/15/22 DOCKET NO. 19-20 711 DATE: February 15, 2022 ORDER An evaluation in excess of 20 percent for right sciatic nerve root injury associated with a shell fragment wound scar of the right upper thigh and lateral buttock is denied. An effective date earlier than May 15, 2015, for a compensable evaluation of right sciatic nerve root injury associated with a shell fragment wound scar, to include on the basis of clear and unmistakable error in the December 1970 rating decision is denied. FINDINGS OF FACT 1. The Veteran's right sciatic nerve root injury is manifest by no more than moderate incomplete paralysis. 2. The Veteran's March 1970 claim of service connection for a shell fragment wound was granted in the form of an award of service connection for a shell fragment wound scar in a December 1970 rating decision. The December 1970 rating decision assigned a noncompensable rating effective January 13, 1970. The rating decision implicitly denied service connection for nerve and muscle damage. 3. The December 1970 rating decision became final because the Veteran did not submit a notice of disagreement or new and material evidence within the appeal period. 4. The correct facts, as known at the time, were before the VA adjudicators in December 1970 and the statutory and regulatory provisions extant at the time were correctly applied. 5. The Veteran filed a claim for an increased rating for his shell fragment wound scar on May 15, 2015. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a right sciatic nerve root injury associated with a shell fragment wound scar of the right upper thigh and lateral buttock have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for an effective date earlier than May 15, 2015, for a compensable evaluation of right sciatic nerve root injury associated with a shell fragment wound scar, to include on the basis of clear and unmistakable error in the December 1970 rating decision have not been met. 38 U.S.C. § 5109A, 5110; 38 C.F.R. §§ 3.102, 3.104, 3.105(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to January 1970, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2021. The Board remanded this appeal to the RO later that same month. 1. An evaluation in excess of 20 percent for right sciatic nerve root injury associated with a shell fragment wound scar of the right upper thigh and lateral buttock. The Veteran disagreed with the 20 percent evaluation for right sciatic nerve root injury associated with a shell fragment wound scar of the right upper thigh and lateral buttock. The Veteran's claim for an increase for the related shell fragment wound scar was received on May 15, 2015. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). At July 2015 VA peripheral nerves examination, the Veteran reported that he first worked as a barber but could not stand because he would get pain down his right leg and toes would go numb. He reported symptoms of moderate and severe intermittent pain and severe numbness. Physical examination showed: normal strength; no muscle atrophy; normal knee reflex; reduced (hypoactive 1+) ankle reflex; and normal sensation to light touch, except for decreased sensation in the right foot/toes. There were no trophic changes. The Veteran had a normal gait and did not use assistive devices. The examiner found there was mild incomplete paralysis of the sciatic nerve. The September 2021 VA examination showed a symptom report of moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. Right lower extremity muscle strength was normal. There was no atrophy. Right lower extremity reflexes were decreased in the foot and toes, but normal otherwise. Trophic changes were not present. The Veteran's gait was not normal. He dragged his left leg due to a cerebral vascular accident (CVA), and he used a cane due to right sided sciatica and left sided CVA residuals. The examiner found there was mild incomplete paralysis of the sciatic nerve. Treatment records and lay statements reflect findings and conclusions that are consistent with the foregoing. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, widespread loss of reflexes, widespread loss of sensation, muscle atrophy and complete paralysis. The Board thus finds that the level of impairment does not more nearly approximate moderately severe or severe incomplete paralysis. It also does not more nearly approximate complete paralysis. The VA examiners' characterizations of the severity of the impairment are probative because of the experience in evaluating these types of disabilities and the specific clinical tests which the examiners administered to the Veteran. At worst, the VA examiners found mild incomplete paralysis of the sciatic nerve. This would normally warrant a 10 percent rating. The Board acknowledges the lay assertions of pain and numbness, and it has considered this in the evaluation. However, the pain and numbness would not warrant raising the severity characterization of the disability from mild by more than one step to moderately severe. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 2. An effective date earlier than May 15, 2015, for a compensable evaluation of a right sciatic nerve root injury associated with a shell fragment wound scar, to include on the basis of clear and unmistakable error in the December 1970 rating decision. The Veteran asserts that the effective date for his service-connected right upper thigh sciatic L5 and S1 nerve root injuries should be the date of his original claim in 1970. The Veteran notes that his disability was caused by shrapnel wound to the right hip and left leg on or about May 12, 1969. The Veteran asserts that the provisions of 38 C.F.R. § 3.156(c) should apply because the fact pattern in his case is parallel to that in Vigil v. Peake, 22 Vet. App. 63 (2008). The Veteran explains that the 2015 VA examination corrects the 1970 VA examination and, pursuant to Vigil, the Veteran should not be penalized for such an administrative error. Specifically, the Veteran asserts that the correction expanded the informational base on which the RO has earlier (1970) concluded that the Veteran had only experienced a superficial shell fragment wound on his right hip in Vietnam. In that regard, the Veteran asserts, the 2015 VA examination concluded that there is nerve damage below the skin surface on which the related scar was readily observable. Therefore, under the Veteran's interpretation of Vigil, his original claim should be reconsidered. In the alternative, the Veteran asserts that there is CUE in the December 1970 rating decision because the RO admitted to shell fragments having been removed from the Veteran's buttock but ignored this in its rating decision granting service connection for only a superficial scar. The Veteran continues that having ignored its knowledge of the shrapnel rounds in the wound and not having ascertained its residuals beyond the Veteran's skin surface and providing no reason for ignoring the relevance of this factual information in 1970 was clear error on its face and a basis for CUE. The December 1970 rating decision granted service connection for a shell fragment wound (SFW) scar of the right upper thigh. This award was based on the Veteran's March 1970 claim of service connection for a right hip shrapnel wound. A noncompensable evaluation was assigned under Diagnostic Code 7805 for scars. The Veteran was also awarded a noncompensable evaluation for a SFW scar of the lower left leg. The Veteran does not contest this award. Upon the Veteran's May 2015 claim of an increase to his shell fragment wound scar disabilities, an August 2015 rating decision granted service connection for right sciatica, L5 and/or S1 nerve root injuries, secondary to mortar round injury to the right buttock. The rating decision assigned a 20 percent evaluation under Diagnostic Code 8520, for sciatic nerve disabilities, effective May 15, 2015. The rating decision confirmed and continued the noncompensable evaluation for the SFW scars under Diagnostic Code 7805. The Veteran did not appeal this decision. He did, however, submit a December 2015 claim for unemployability benefits and thus the August 2015 rating decision did not become final. A rating decision in February 2016 continued the 20 percent evaluation for the right sciatica. In April 2016, the Veteran submitted his CUE claim. The August 2016 rating decision denied an earlier effective date and a higher evaluation for his right lower extremity sciatica, including on the basis of CUE as to the effective date. In November 2016, the Veteran filed his notice of disagreement, and this appeal followed. 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 December 1970 rating action awarded service connection for a SFW scar at a noncompensable evaluation. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new and material evidence within one year of its promulgation. The doctrine of constructive possession is not applicable to rating decisions prior to 1992. Damrel v. Brown, 6 Vet. App. 242 (1992). Thus, the December 1970 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. Turning to the Veteran's contentions that the 1970 claim should be reconsidered under 38 C.F.R. § 3.156(c), as provided by 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. See 38 C.F.R. § 3.156(c)(1) (2014). However, reconsideration is inapplicable to records that VA could not have obtained when it decided the claim because the claimant failed to provide sufficient information for VA to identify and obtain the records. See 38 C.F.R. § 3.156(c)(2). The Veteran does not argue that there were relevant official service department records that existed but were not associated with the claims file when VA first decided the claim. Instead, he argues that the July 2015 VA examination corrects the October 1970 VA examination. Therefore, according to the Veteran, under Vigil v. Peake, supra, he is entitled to reconsideration because the Veteran construes Vigil to apply to all records. The Board finds the Veteran's reliance on Vigil is misplaced. Vigil interprets 38 C.F.R. § 3.156(c), which applies only to service department records. "Service department records" means records from the Army or other branches of service. In this case, such records would be service treatment records or military personnel records. Because both the July 2015 VA examination and the October 1970 VA examination are not service department records, 38 C.F.R. § 3.156(c) does not apply. Regardless, the Board notes that new military personnel records were associated with the claims file in September 2003 and April 2014. The question becomes whether these records were relevant to the Veteran's original claim in 1970. These records show the award of the Purple Heart to the Veteran, as well as his record of assignments. They also contain administrative and background information on the Veteran's service. To be "relevant" for purposes of reconsideration under 38 C.F.R. § 3.156(c)(1), the new service record must address a factual issue that was dispositive against the Veteran in the prior VA adjudication - i.e., an element in dispute. Kisor v. McDonough, 995 F.3d 1347 (April 30, 2021). In this case, the new service department records only indicate that the Veteran was wounded. This is a fact that was not in dispute at the time of the December 1970 rating decision. Indeed, the nature of the Veteran's award for two shell fragment wound scars proves the matter of a wound was not in dispute. Thus, the Board concludes that these newly associated service department records are not relevant. For the foregoing reasons, reconsideration under 38 C.F.R. § 3.156(c) is not warranted. 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. The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). As a threshold matter, the Board finds that the arguments 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. One of the Veteran's arguments is that he should have been granted service connection for the nerve injury in 1970. In making this argument, the Veteran refers to evidence that was generated after the December 1970 rating decision. He particularly relies upon the July 2015 VA examination and the theory that it "corrects" or "expands upon" the October 1970 VA examination. He also relies upon the Veteran's lay statements after December 1970, including the June 2021 Board hearing testimony. This argument is unavailing. In CUE claims, the Board may only consider evidence in existence at the time of the rating decision being challenged, which is December 1970 in this case. 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). To the extent that the Veteran argues that the later evidence shows the correct facts were not before the adjudicators in 1970, he has not met the standard for showing CUE. Evidence that was not of record at the time of the December 1970 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). In this case, the Veteran points to evidence that was not even in existence at the time of the December 1970 rating decision. Therefore, it cannot be the basis for showing the correct facts as they were known at the time were not before the adjudicators. On the contrary, the evidence of record at the time of the December 1970 rating decision and the language of the rating decision itself show that the correct facts were before the adjudicators. The Veteran submitted a March 1970 claim of service connection for a shrapnel wound of the right hip and of the left leg. May 1969 service treatment records show a fragment wound to the right lateral buttock that was debrided. The separation examination in January 1970 showed normal spine and other musculoskeletal, as well as normal lower extremities and neurologic systems. The Veteran endorsed cramps in his legs and back trouble in his separation Report of Medical History. He denied neuritis, lameness, arthritis or rheumatism, and swollen or painful joints. The October 1970 VA orthopedic examination noted the history of the shell fragment wound and the removal of the fragment. At that time, the Veteran reported that, during cold weather, the wound throbs, however, there is no interference with motion. The Veteran reported that he was a barber and would stands on his feet considerably. He asserted that after standing, his right hip would ache slightly. On examination, there were normal movements of the hips, knees, and ankles. There was a dark, flat, superficial scar about 3 inches below the right hip joint and about the size of a half dollar. It moved freely and there was no tenderness to the area. A neurological workup was also undertaken, concluding that there was no evidence of nerve damage except for cutaneous nerve damage in his scars. An x-ray showed no fragment in the wound and no other abnormalities. In granting only service connection for the scar at a noncompensable rate, the December 1970 rating panel specifically noted the service treatment records showing the fragment wound to the right lateral buttock. The rating decision noted that the wound was debrided, that there was delayed primary closure and the Veteran was returned to light duty. The rating panel noted that the fragment was apparently removed from the Veteran's buttock. The rating panel repeated the findings of the VA examination with respect to normal range of motion, a superficial scar, free movement of the scar and no tenderness. The Board acknowledges there was evidence that could be considered in the Veteran's favor, such as reporting cramps in his legs at separation from service and his lay reports of occasional throbbing of the scar in cold weather and slight ache to the right hip after standing on his feet. However, the October 1970 VA examination represents evidence against the claim, including its description of normal motion, no abnormalities on x-ray, lack of tenderness to the scar, and only cutaneous nerve damage in his scar. Therefore, the issue for consideration is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. "It 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)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. Based on the evidence in favor of and against the claim, the Board finds that reasonable minds could differ as to whether there was nerve damage. An error is not CUE unless reasonable minds could not differ that the result would be manifestly different than the original outcome. Id. The Veteran asserts that the December 1970 rating decision was clearly erroneous because it provided no reason for ignoring knowledge of the shrapnel rounds in the wound. At the time of the December 1970 rating decision, the RO was not required to provide a statement of reasons or bases as to its conclusions. See Natali v. Principi, 375 F.3d 1375, 1381 (Fed. Cir. 2004) (holding that statements of reasons or bases in RO decisions were not required prior to the Veterans' Benefits Amendments of 1989, which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision); see also Eddy v. Brown, 9 Vet. App. 52, 58 (1996) (holding that "silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record"). Consequently, in order to establish CUE in a rating decision prior to February 1990 based on the failure to consider a particular fact or law, "it must be clear from the face of that decision that a particular fact or law had not been considered in the RO's adjudication of the case." Evans, 27 Vet. App. at 189 (quoting Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005)). There is no indication from the face of the December 1970 rating decision that the particular facts highlighted by the Veteran were not considered. In fact, the Veteran quotes the passages of the rating decision demonstrating the adjudicators' awareness of the fragments in the wound and apparent removal, which contradicts the notion that the adjudicators failed to consider the particular fact. The Veteran has also made contentions raising breaches of the duty to assist. The Veteran asserted that the October 1970 VA examination was inadequate, and that the RO failed to ascertain the residuals of the shrapnel wound beyond the Veteran's skin surface. Nevertheless, a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. Even a misdiagnosis cannot rise to the level of CUE. The pertinent law reflects that medical personnel are not adjudicators and, as such, cannot commit CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); see also Shockley v. West, 11 Vet. App. 208 (1998) (a claim of misdiagnosis could be interpreted as either assertion of failure to satisfy duty to assist or disagreement with weighing of facts, neither of which can be clear and unmistakable error). Consequently, the Board finds that the December 1970 rating decision was not clearly and unmistakably erroneous in this regard. At the June 2021 Board hearing, the Veteran raised the issue that the RO failed to adjudicate either a muscle or orthopedic injury at the time of the December 1970 rating decision. The error in a CUE context is alleged as a "failure to adjudicate a reasonably raised claim." In this instance, VA must make two threshold factual determinations: (1) was a claim reasonably raised and if so, (2) is the claim still pending or was it adjudicated (explicitly or implicitly) as part of a final decision. If the claim is still pending, it should be adjudicated and there is no need to reach CUE. If it was finally decided, then it may be revised on the basis of CUE. Richardson v. Nicholson, 20 Vet. App. 64, 72 (2006). Here, the Board finds without question that the claims of muscle and orthopedic injuries were reasonably raised. The nature of a SFW injury raises such issues. Accordingly, the Board must determine whether there was an implicit denial, and if so, whether any such denial was CUE. Pursuant to the implicit denial doctrine, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision. Cogburn v. Shinseki, 24 Vet. App. 205, 210 (2010) citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The key question in the "implicit denial" inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well. Adams, 568 F.3d at 962-963. Four factors must be considered to determining whether a claim was implicitly denied: 1) The specificity or relatedness of the claims (e.g., is the claim for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related); 2) Whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; 3) The timing of the claims (e.g., were the claims filed in the same application, within a short period of time from each other, etc.); and 4) Whether the claimant is represented. Cogburn, 24 Vet. App. at 212-214. The Board finds that the December 1970 rating decision implicitly denied service connection for the sciatic nerve root disability, muscle injuries, and orthopedic injuries. Reviewing the four factors set forth above, the March 1970 claim listed shrapnel wound of the right hip with the date of the wound identified. The claim was not for a scar. It was one claim for all residuals of the shrapnel wound. All residuals would, therefore, necessarily be related to one another. Secondly, the adjudication described the treatment of the wound in specific detail and did not limit the discussion to the scar alone. For instance, the adjudication considered joint range of motion as well as movement of the scar. It also noted that no fragment or abnormalities were present on x-ray. Thus, it could be reasonably inferred that nerve injuries and muscle injuries were found not to be present. As to the timing of the "claims," there was one claim, so timing is not in question. Next, there was one claim, that of service connection for a shrapnel wound. Finally, although the Veteran was not represented by an attorney at the time, the other factors weight strongly in favor of an implicit denial. The Board's discussion above regarding the adjudication of the nerve root injury applies here as well. It was reasonable, given the evidence, for the December 1970 rating panel not to have found a sciatic nerve injury was present or associated with the SFW. Where reasonable minds could disagree, CUE is not present. Fugo v. Brown, 6 Vet. App. 40 (1993). Similarly, with respect to the implicitly denied service connection for muscle injuries or orthopedic injuries as a residual of his SFW, reasonable minds could disagree. Evidence showed that there was normal range of motion and the wound was not tender to palpation. See October 1970 rating decision. X-rays of the hip and thigh showed no orthopedic abnormality. Moreover, at the time of the December 1970 rating action, the rating board was permitted to rely on its own medical judgment to support its conclusions. Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (finding that a rating panel was not prohibited from relying upon its own medical judgement to support its conclusion where the rating panel included a medical member); cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The Board notes that it was regular practice of the VA in December 1970 to have three-member rating panels. As can be seen on the face of the December 1970 rating decision, a medical member of the rating board participated in making the determination and, as a signatory to the determination, affirmed his agreement with the finding. MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (affirmed No. 2011-7034 (Fed. Cir. Jan. 11, 2012)); Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the VA's position was substantially justified in a pre-Colvin decision relying on its own medical judgment). "[T]he presence of the medical member on the [rating board], pre-Colvin, allowed the [b]oard to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment." Hime, 28 Vet. App. at 8. Thus, to the extent the December 1970 determination is alleged to be contrary to the medical evidence of record, the Board finds that the rating board apparently relied upon the medical judgment of the medical member, among other things, in deciding the claim. While the Veteran may not agree with the rating board's determination, this is not a basis for finding CUE. Another argument raised in the June 2021 Board hearing was whether there was error with the assignment of a noncompensable evaluation for the right thigh SFW scar. This issue was adjudicated in the November 2021 rating decision rendered in compliance with the Board's June 2021 remand. The December 1970 rating decision assigned a noncompensable evaluation under Diagnostic Code (DC) 7805. In December 1970, the applicable version of DC 7805 provided to rate scars other than those in DC's 7800 to 7804 on the limitation of function of the part affected. 38 C.F.R. § 4.118 (1970). The evidence, as discussed above, shows no limitation of function of the right buttock and thigh in terms of range of motion. It would have been reasonable for the adjudicators to conclude that the lay reports of throbbing and aching would not more nearly approximate compensable limitation of function. Since reasonable minds could disagree, CUE is not present. As to whether the failure to apply an evaluation under another DC for scars was CUE, the Board concludes that it was not. DC 7800 pertained to scars of the head, face or neck. The Veteran's scar was not of the head face or neck. DCs 7801 and 7802 pertain to burn scars with area requirements for a compensable evaluation that exceed the area of the Veteran's scar, which was described as being the size of a half dollar. DC 7803 pertained to superficial, poorly nourished scars with repeated ulcerations. There was no evidence of the Veteran's scar being poorly nourished or having repeated ulcerations. Finally, DC 7804 pertained to superficial scars that were tender and painful on objective demonstration. In this case, although the Veteran has described some symptoms associated with his scar, on the physical examination, it was no tender or painful. For those reasons, it would be reasonable for the adjudicators in December 1970 to have concluded that a rating under another DC for scars was not warranted. Finally, CUE must be pled with some degree of specificity as to the alleged error and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give specific arguments 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) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Thus, to the extent that the Veteran has other theories of CUE that have not been raised or adjudicated, the Board may not address them. For the reasons discussed above, there is no error in the December 1970 rating decision that would result in a manifest change in the outcome. Accordingly, a revision to the December 1970 rating decision is not warranted on the basis of CUE. Next, the Board adjudicates whether an effective date earlier than May 15, 2015 for the award of service connection for the nerve injury secondary to the SFW scar is warranted on a basis other than CUE. Generally, the effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). Effective dates for initial evaluations assigned as part of the initial award of service connection, i.e. "initial evaluations," are considered to belong in this category. The effective date of a claim for an increased evaluation "will be the date of receipt of the claim or the date entitlement arose." 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation, however, can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. Effective for claims filed on or after March 24, 2015, 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). For claims filed after that date, informal claims are not valid. Prior regulations held that a claim was 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) (2013). On May 15, 2015, VA received the Veteran's Fully Developed Claim requesting an increase in the disability evaluation for his SFW scars. As a result of this claim, the August 2015 rating decision granted service connection for sciatica of the right lower extremity effective May 15, 2015. For the reasons discussed above with respect to procedural history, the August 2015 rating decision did not become final. Therefore, the November 2016 notice of disagreement appealing the August 2016 rating decision establishes an appeal period to the beginning of the August 2015 claim. Accordingly, the appeal of an effective date earlier than May 15, 2015 (other than based on CUE) is not a freestanding claim of an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Assuming the award of service connection for the sciatic nerve disorder on a secondary basis should be treated as an increased rating claim, the Board may award the evaluation up to one year prior to the date of claim provided that an increase was established within the year. If an increase is "factually ascertainable" within the year preceding the claim, the effective date will be the date the increase was factually ascertainable. If the increase occurred prior to that period, then the effective date is still the date of claim. See Gaston v. Shinseki, 605 F. 3d 979 (2010). In this case, there are no medical records for the one-year period prior to the date of the claim. The Veteran's lay statements do not indicate in other than a vague manner that his disability increased in severity. The statements do not suggest the disability increased in severity within the year prior to filing his March 2015 claim. The lay statements, instead, suggest his symptoms had been present for over a year prior to the May 2015 claim. For instance, his statements that he couldn't work as a barber because he couldn't stand for long due to pain reflect a longer history of this pain than one year. Thus, it is not factually ascertainable that an increase occurred within the year preceding the claim. Finally, there is no communication in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit, that was received prior to March 24, 2015, that could be construed as a claim for benefits that had not already been finally adjudicated. For the foregoing reasons, an effective date earlier than May 15, 2015, for the award of service connection for right sciatic nerve root injury, is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.