Citation Nr: 22014164 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-18 400 DATE: March 11, 2022 ORDER Entitlement to an effective date prior to December 4, 2013, for the award of service connection for right ankle lateral collateral ligament sprain with deltoid ligament sprain and tendonitis, to include as a result of clear and unmistakable error (CUE) in an August 1976 rating decision, is denied. FINDINGS OF FACT 1. The Veteran's claim seeking entitlement to service connection for a chronic right ankle sprain was initially denied in an August 1976 rating decision. The Veteran did not initiate an appeal or submit any new or material evidence within one year of the decision; the rating decision became final. 2. In a March 2017 rating decision, service connection was granted for right ankle lateral collateral ligament sprain with deltoid ligament sprain and tendonitis, effective December 4, 2013, the date an application to reopen was received. 3. There is no evidence in the record that the Veteran filed a claim prior to December 4, 2013, and since the February 2011 rating decision denying a petition to reopen his service connection claim. 4. The August 1976 rating decision that denied service connection for a chronic right ankle sprain was based on the record which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. CONCLUSION OF LAW The criteria for assignment of an effective date prior to December 4, 2013, for the award of service connection for right ankle lateral collateral ligament sprain with deltoid ligament sprain and tendonitis, to include as a result of CUE in an August 1976 rating decision, have not been met. 38 U.S.C. §§ 5101, 5109A, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.104, 3.105, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1972 to April 1973. In September 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. Entitlement to an effective date prior to December 4, 2013, for the award of service connection for a right ankle disability, to include as a result of CUE in an August 1976 rating decision The Veteran seeks an earlier effective date for the award of service connection for his service-connected right ankle disability. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran's claim is not warranted. Legal criteria Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2)(i). A specific claim in the form prescribed by the Secretary of VA 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). Effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 79 Fed. Reg. 57660 (Sept. 25, 2014). Prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative 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. 38 C.F.R. § 3.105 (a). 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. A failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). 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. 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. Additionally, Regional Office (RO) decisions from prior to February 1990 are presumptively valid. Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed. Cir. 2004) (holding that statements of reasons and bases were not required in RO decisions prior to Pub. L. No. 101-237, 103 Stat. 2062 (1988)). For CUE claims challenging RO decisions from prior to February 1, 1990, the Board must analyze the evidence that was before the RO at the time of the decision and determine whether the RO's decision was supported by the evidence. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). Further, the presumption of administrative regularity attaches meaning that, in the absence of contrary evidence, there is a presumption that the RO made the requisite factual and legal findings needed to adjudicate the claims. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that the presumption of administrative regularity does not conflict with the requirements of 38 U.S.C. § 5107 (b)). Consequently, in the CUE context, "failure to mention evidence in a decision prior to February 1990 does not mean that the evidence was not considered." King, 26 Vet. App. at 438. To qualify as CUE, there must be some indication in the decision that a specific fact was not considered, such as an explicit denial that a piece of relevant evidence existed. Id. at 438-39. "To establish CUE based on the failure to consider a particular fact or law, 'in a pre-February-1990 RO decision, 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 v. McDonald, 27 Vet. App. 180, 188-89 (2014) (en banc) (citing Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005)). Facts and Analysis The Veteran's initial claim seeking service connection was received in April 1976. In an August 1976 rating decision, the RO denied the claim because while the Veteran treated in service for a chronic ankle sprain, the evidence of record showed the right ankle disability existed prior to service. The RO further found that there was no evidence that the Veteran's right ankle sprain was aggravated beyond normal progression in service, and there were no residuals besides the Veteran's complaints. The Veteran did not initiate an appeal or submit any new or material evidence within one year of the decision, and it became final. In July 2010, the Veteran submitted a petition to reopen the service connection claim. In a February 2011 rating decision, the petition was denied as the RO determined the Veteran did not submit new and material evidence sufficient to reopen the claim. The Veteran did not initiate an appeal or submit any new or material evidence within one year of the decision, and it too became final. On December 4, 2013, the Veteran submitted a VA Form 21-526EZ in which he again requested to reopen his previously denied service connection claim for a right ankle disability. Service connection was subsequently granted in a March 2017 rating decision. The Veteran was assigned an initial 10 percent evaluation effective the December 4, 2013, date of his petition to reopen his claim. The Board finds the Veteran is already in receipt of the earliest possible effective date for his right ankle disability as the effective date assigned is the date the Veteran's petition to reopen his service connection claim was received. A thorough review of the record shows no claim or statements submitted by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected right ankle disability prior to December 4, 2013, and since the date of the February 2011 rating decision. As such, the claim must be denied. The only other possible basis for an effective date earlier than that assigned is to show CUE in a prior final rating decision. See 38 C.F.R. § 3.105 (a). The Veteran's attorney argued in a May 2017 brief that the August 1976 rating decision that initially denied service connection for the right ankle disability was the product of CUE because the RO failed to correctly apply the presumption of soundness to the facts of the Veteran's claim. The Veteran's attorney further argued that had this error not occurred, the Veteran would have been awarded service connection based on the evidence of record at the time of the rating decision. The Board notes that the VA regulations pertaining to the presumption of soundness have remained unchanged since the August 1976 rating decision. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran's October 1972 entrance examination noted no physical defects pertaining to the Veteran's right ankle. Therefore, the presumption of soundness attaches. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness is only rebutted if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. However, in George v. Wilkie, 30 Vet. App. 364 (2019), the U.S. Court of Appeals for Veterans Claims held Wagner's interpretation of 38 U.S.C. § 1111 does not apply retroactively to final decisions. In the Veteran's case, the August 1976 rating decision denying service connection concluded the Veteran's diagnosed chronic right ankle sprain while it was treated during active duty service existed prior to service and there was no evidence the condition was aggravated beyond the normal progression. Further, there were no current residuals of the disability beyond the Veteran's subjective complaints. The Board finds that even if the RO had erred in applying the burden-shifting framework under the presumption of soundness at the time of its August 1976 rating decision, it is unclear whether this would have resulted in a manifestly different outcome for the Veteran. Because the Veteran's claimed error does not compel the conclusion, to which reasonable minds could not differ, that the result would have been different but for the error, the Board finds that the Veteran has not met the high evidentiary burden of showing CUE in the August 1976 rating decision. At the time of the rating decision, the medical evidence of record included service treatment records showing the Veteran received medical attention for a chronic right ankle sprain. Personnel records show the Veteran was discharged because he did not meet the medical fitness standards at the time of enlistment. And a July 1976 VA examination shows the Veteran was diagnosed with residuals of a right ankle sprain. However, the VA examiner at that time failed to provide any opinion addressing whether the Veteran's diagnosed right ankle sprain residuals had its onset in or was otherwise related to active duty service. Instead, the examiner included in the examination report a handwritten recitation of the relevant medical history with respect to the Veteran's right ankle both during and since discharge from active duty service. The medical record at the time of the August 1976 rating decision does not include any medical professional's opinion commenting on whether any diagnosed right ankle disability was related to the Veteran's in-service treatment for his right ankle. The Veteran's attorney argues in his May 2017 brief that the nexus requirement for service connection was met by the July 1976 statements by the VA examiner, who recounted the Veteran's in-service treatment for a chronic right ankle sprain and then stated "[h]e has since been having occasional turning of the ankle and swelling." The Veteran's attorney argued that the examiner's use of the word "since" in his statements recounting the Veteran's medical history with respect to his right ankle disability "strongly imply the doctor's belief that [the Veteran]'s current ankle sprains and swelling are the result of his initial in-service injuries." A claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. The evidence does not support a finding that there was an undebatable error in the August 1976 rating decision which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). In sum, there is no showing that the RO committed CUE in the August 1976 rating decision. As CUE has not been demonstrated, the claim for an earlier effective date based on CUE must be denied. M. E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.