Citation Nr: 22018197 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 15-10 767A DATE: March 28, 2022 ORDER A January 2010 Board of Veterans' Appeals (Board) decision did not contain clear and unmistakable error (CUE) in denying an effective date prior to March 3, 1998 for the grant of service connection for the residuals of a frenulectomy, to include partial loss of the sense of taste and nerve damage to the 12th cranial nerve. A January 2010 Board decision did not contain CUE in denying an effective date prior to February 18, 1999 for the grant of service connection for burn scars of the bilateral hands, bilateral forearms, and the left ankle. A January 2010 Board decision did not contain CUE in denying an effective date prior to April 7, 1999 for the grant of service connection for posttraumatic stress disorder (PTSD). FINDING OF FACT In denying earlier effective dates for the awards of service connection for the residuals of a frenulectomy; burn scars of the bilateral hands, bilateral forearms, and the left ankle; and PTSD, the January 2010 Board did not commit an error, of which reasonable minds could not differ, in not considering 38 C.F.R. § 3.156(c) and the Department of Veterans Affairs (VA) receiving deck logs regarding the USS Taylor in October 2004. CONCLUSIONS OF LAW 1. A January 2010 Board decision that denied an effective date prior to March 3, 1998 for the grant of service connection for the residuals of a frenulectomy, to include partial loss of the sense of taste and nerve damage to the 12th cranial nerve, was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.156(c), 20.1400, 20.1403, 20.1404. 2. A January 2010 Board decision that denied an effective date prior to February 18, 1999 for the grant of service connection for burn scars of the bilateral hands, bilateral forearms, and the left ankle was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.156(c), 20.1400, 20.1403, 20.1404. 3. A January 2010 Board decision that denied an effective date prior to April 7, 1999 for the grant of service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.156(c), 20.1400, 20.1403, 20.1404. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1965 to July 1966. This matter is before the Board via a September 2015 motion in which the Veteran, through his representative, contended that a January 2010 Board decision was clearly and unmistakably erroneous in denying earlier effective dates for the awards of service connection for the residuals of a frenulectomy; burn scars of the bilateral hands, bilateral forearms, and the left ankle; and PTSD. In June 2018, the Board dismissed the Veteran's September 2015 motion, indicating that it lacked jurisdiction to adjudicate the motion's merits. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Joint Motion for Remand (JMR), the Veteran and the Secretary moved the Court to vacate the June 2018 Board decision and remand the case for further consideration. Later in February 2020, the Court granted the JMR. The case returned to the Board, and, in an August 2020 decision, the Board found that the January 2010 decision did not contain CUE in denying entitlement to earlier effective dates. Accordingly, the Board denied the Veteran's September 2015 motion. Subsequently, the Veteran appealed the August 2020 decision to the Court. In November 2021, the Court issued a Memorandum Decision vacating the Board's August 2020 decision and remanding the case for readjudication. The Court then entered its judgment and issued its mandate in January 2022. The case has once again returned to the Board for adjudication. In March 2022, the Veteran waived the remainder of the 90-day period following the Court's January 2022 mandate. CUE As an initial matter, the Board notes that, in its now-vacated August 2020 decision, it addressed a directive from the parties' February 2020 JMR concerning the issues that were addressed previously in a May 2012 Memorandum Decision by the Court. In addressing this directive, the August 2020 Board concluded that the May 2012 Memorandum Decision did not adjudicate whether the Board in January 2010 erred in not applying 38 C.F.R. § 3.156(c) in denying earlier effective dates for the awards of service connection burn scars, residuals of a frenulectomy, and PTSD. The August 2020 Board then found that, as this contention was raised in the pending September 2015 CUE motion and was not addressed by the Court in May 2012, the application of 38 C.F.R. § 3.156(c) in January 2010 was not an "issue" that had been appealed and decided by a court of competent jurisdiction as contemplated by 38 C.F.R. § 20.1400. The August 2020 Board concluded that, thusly, the September 2015 CUE motion was not excluded by operation of law as any Board decision in January 2010 regarding the issue of applying 38 C.F.R. § 3.156(c) was not subsumed by the Court's decision in May 2012. The Board notes that the August 2020 Board's finding concerning this preliminary matter regarding subsumption was not in contention in the November 2021 Memorandum Decision. Nevertheless, as the August 2020 decision was vacated by the Court via the November 2021 Memorandum Decision, the Board once again finds that the Veteran's September 2015 CUE motion is not excluded by operation of law as any Board decision in January 2010 regarding the issue of applying 38 C.F.R. § 3.156(c) was not subsumed by the Court's decision in May 2012. Accordingly, the Board will proceed to address the substance of the Veteran's September 2015 motion. In addressing the substance of the motion, the Board first notes that a prior final Board decision must be revised or reversed where the evidence establishes CUE in that decision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-1411. To warrant a finding of CUE, there must have been 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 results would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). The basis for this standard is that, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Additionally, a CUE motion must be based on the evidence and applicable law at the time of decision being challenged. 38 C.F.R. § 20.1403(a); Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Further, in a motion alleging CUE in a prior Board decision, the claimant must specifically indicate what the error was and must provide persuasive reasons why the decision would have been manifestly different but for the error. See Fugo, 6 Vet. App. at 44. Statements that the Board improperly weighed and evaluated evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo, 6 Vet. App. at 44. In light of these principles, the Board preliminarily finds that the Veteran has met the threshold pleading requirement regarding his contention of CUE. Specifically, the Veteran has argued that the January 2010 Board erred in denying earlier effective dates for the awards of service connection for the residuals of a frenulectomy; burn scars of the bilateral hands, bilateral forearms, and the left ankle; and PTSD without explicitly considering 38 C.F.R. § 3.156(c). As 38 C.F.R. § 3.156(c) permits, in some circumstances, VA to assign an effective date back to the date VA received a previously denied claim, then a manifestly different outcome could have resulted but for the January 2010 Board's lack of explicit consideration of 38 C.F.R. § 3.156(c). Accordingly, the Board proceeds to address the merits of the Veteran's September 2015 motion to reverse or revise the January 2010 Board decision based on CUE. In addressing the merits of the Veteran's motion, the Board notes that the Veteran has stated that the January 2010 Board's lack of discussion of 38 C.F.R. § 3.156(c) was CUE because previously unreviewed deck logs were associated with his claims file in October 2004 during the pendency of his appeal for earlier effective dates. According to the Veteran, VA's receipt of these deck logs in October 2004 triggered reconsideration of his original claims for service connection and the assignment of effective dates back to the date VA received his original claim in February 1968 under 38 C.F.R. § 3.156(c). After reviewing the evidence of record, the Board disagrees and, respectfully, denies the Veteran's motion. In support of this determination, the Board notes that, at the time of the January 2010 decision at issue, 38 C.F.R. § 3.156(c) read as follows: Notwithstanding any other section in this part, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim[.] 38 C.F.R. § 3.156(c)(1) (2010). 38 C.F.R. § 3.156(c)(3) (2010) then explained that "[an] award based all or in part on the records identified by [38 C.F.R. § 3.156(c)(1)] is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim." The Board acknowledges that 38 C.F.R. § 3.156(c) was amended during the pendency of the Veteran's appeal for earlier effective dates that was adjudicated in the January 2010 decision. See New and Material Evidence, 71 Fed. Reg. 52,455, 52,457 (Sept. 6, 2006) (Final Rule). Specifically, prior to October 6, 2006, 38 C.F.R. § 3.156(c) read as follows: Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c) (2005). As the Court reminded the Board in its November 2021 Memorandum Decision, if a law or regulation changes after a claim is filed, then the Secretary can apply the version most favorable to the claimant. See November 2021 Memorandum Decision at 4 (citing Haas v. Nicholson, 20 Vet. App. 277-78 (2006)). Accordingly, both the pre- and post-2006 versions of 38 C.F.R. § 3.156(c) were potentially applicable at the time of the January 2010 Board decision. After reviewing the evidence of record, the Board finds that application of either version of 38 C.F.R. § 3.156(c) was not warranted at the time of the January 2010 decision. Accordingly, the Board concludes that the January 2010 decision's lack of consideration of either the pre- or post-2006 amendment versions of 38 C.F.R. § 3.156(c) was not an error, of which reasonable minds could not differ, that manifestly would have changed the outcome of the decision. Specifically, in this case, deck logs from the USS Taylorwhich were previously unreviewed by VAwere associated with the Veteran's file in October 2004. Thus, under the pre-amendment version of 38 C.F.R. § 3.156(c), reconsideration of the Veteran's original claim from February 1968 was warranted as "supplemental report[s] from the service department" had been received after VA issued the rating decision denying the Veteran's original claim in June 1968. However, the Board notes that VA Regional Offices (ROs) awarded service connection for burn scars, residuals of a frenulectomy, and PTSD in rating decisions from July 1999, January 1999, and July 2001, respectively. These awards of service connection occurred prior to October 2004 when the deck logs mentioned in the Veteran's motion were associated with the claims file. As mentioned previously, the pre-amendment version of 38 C.F.R. § 3.156(c) provided that the assignment of a retroactive evaluationand thus an earlier effective date for the award of service connectionof a disability subsequently service connected was limited to circumstances when supplemental reports from a service department were associated with the claimant's file and the award of service connection was made "on the basis of the new evidence from the service department[.]" 38 C.F.R. § 3.156(c) (2005). Thus, the Board concludes that a reasonable adjudicator in January 2010, applying the pre-amendment version of 38 C.F.R. § 3.156(c), could read the plain text of the regulation to limit the assignment of an earlier effective date retroactive to the date of receipt of original claim to circumstances when the newly-received service department records contributed to the grant of service connection. Because this was a permissible interpretation and application of the regulation, the Board concludes that it was not clearly and unmistakably erroneous for the January 2010 Board to omit a discussion regarding the applicability of the pre-amendment version of 38 C.F.R. § 3.156(c), as the deck logs received in October 2004 played no role in the grants of service connection in the July 1999, January 1999, and July 2001 rating decisions. Similarly, under the post-amendment version of 38 C.F.R. § 3.156(c), subsection (c)(3) conditioned the availability of an earlier effective date pursuant to subsection (c)(1) upon VA making an "award" based "all or in part" on the newly submitted service department records. See 38 C.F.R. § 3.156(c) (2010). In the Veteran's case, VA ROs awarded service connection for burn scars, residuals of a frenulectomy, and PTSD in rating decisions from July 1999, January 1999, and July 2001, respectively. These awards of service connection occurred prior to when the deck logs were associated with the claims file in October 2004. Accordingly, as the grants of service connection were not based in any part upon the deck logs submitted in October 2004, a reasonable adjudicator in January 2010 could conclude that application of the post-amendment version of 38 C.F.R. § 3.156(c) was also not warranted via a reading of the plain language of the regulation. The Board acknowledges the Veteran's representative's February 2022 brief wherein he argued that the pre-amendment version of 38 C.F.R. § 3.156(c) was more favorable to the Veteran at the time of the January 2010 decision. Additionally, the representative indicated that application of the pre-amendment version of the regulation mandated the assignment of earlier effective dates back to 1968. In support of this argument, the Veteran's representative referenced the Court's decision in Emerson v. McDonald, 28 Vet. App. 200 (2016). In Emerson, a claimant filed an original claim for service connection for PTSD that was ultimately denied in a rating decision based upon the lack of a verified stressor. Id. at 203. After the rating decision became final, VA amended 38 C.F.R. § 3.304(f) to eliminate the requirement for corroborative evidence of a stressor where a VA mental health expert diagnosed PTSD and the stressor at issue was related to the claimant's fear of hostile military or terrorist activity. Id. The claimant in Emerson subsequently filed a claim to reopen his previously denied PTSD claim, and service connection was then granted based upon the amended standard in 38 C.F.R. § 3.304(f). Id. at 203-4. Following the award of service connection, and the assignment of an initial rating, the claimant submitted a timely notice of disagreement (NOD) and, thereafter, also filed service department records that had not previously been reviewed by VA adjudicators. Id. at 204. The Emerson court held that, based on the plain language of 38 C.F.R. § 3.156(c)(1)the post-2006 amendment versionVA was required to "reconsider" the Veteran's original claim for service connection. Id. at 210. However, the Court then limited its holding by stating that it was not capable of resolving the downstream question of whether the new service department records received after the award of service connection satisfied 38 C.F.R. § 3.156(c)(3)'s requirement of "an award based all or in part on the newly associated official service department records" such that an earlier effective date retroactive to the date VA received the original claim should be assigned. Id. at 210-11 From this review of Emerson, the Board finds the February 2022 brief's citation to that case to be unpersuasive regarding the existence of CUE in the January 2010 Board decision. Specifically, the discussion of 38 C.F.R. § 3.156(c) in Emerson concerned the application of the post-2006 version of 38 C.F.R. § 3.156(c), not the pre-amendment version as advocated by the Veteran's representative. Further, while the Emerson court indicated that "reconsideration" of the original claim pursuant to 38 C.F.R. § 3.156(c)(1) was triggered upon the receipt of the new service department recordseven after service connection was grantedthe Court directly stated that it was not determining whether the receipt of the new service department records after VA already granted service department records satisfied 38 C.F.R. § 3.156(c)(3)'s requirement of "an award based all or in part" for the purpose of assigning the date VA received the original claim as the new effective date. Thus, Emerson is not dispositive to the issue in contention in the instant casethe existence of CUE in the January 2010 Board decision concerning the applicability of 38 C.F.R. § 3.156(c). Moving beyond the application of Emerson, the Veteran's representative also argued in the February 2022 brief that the receipt of the previously-unreviewed deck logs in October 2004 was relevant and, accordingly, the January 2010 Board committed CUE in not assigning earlier effective dates pursuant to the pre-amendment version of 38 C.F.R. § 3.156(c). Specifically, the representative argued (1) that the deck logs received in October 2004 demonstrated the Veteran's combat status; (2) the application of combat status relieved the Veteran of the duty of producing medical documentation of claimed combat-related injuries; (3) combat status provided an avenue for service connection on a presumptive basis; and (4) combat status should have been established in 1968 at the time the Veteran submitted his original claim, thus warranting retroactive effective dates back to the date of receipt of the original claim. In addressing this argument, the Board notes that, in the July 2001 rating decision that granted service connection for PTSD, the RO acknowledged that the Veteran experienced stressors of being burned in service and serving in a combat zone. Relatedly, in the July 1999 rating decision that awarded service connection for residuals of burn scars, the RO awarded service connection on a direct basis and the Veteran's combat status was not at issue. Accordingly, the Board concludes that Veteran's combat experience was already verified prior to the receipt of the deck logs in October 2004. Thus, it is not clear how the receipt of the deck logs in October 2004 would have altered the determinations made in July 2001 or July 2009. Additionally, it is also not clear how a discussion of the Veteran's already-verified combat status would have implicated either the pre- or post-amendment versions 38 C.F.R. § 3.156(c) and rendered the January 2010 Board's omission of a discussion of this regulation to be clearly and unmistakably erroneous. In conclusion, as the deck logs received in October 2004 did not contribute to the "basis" of the awards of service connection for residuals of a frenulectomy, residuals of burn scars, and/or PTSD, a reasonable adjudicator could conclude that the pre-2006 amendment version of 38 C.F.R. § 3.156(c) was not applicable in January 2010. Similarly, as the awards of service connection for residuals of a frenulectomy, residuals of burn scars, and/or PTSD were not "based all or in part" on the decks logs received in October 2004, a reasonable adjudicator could likewise conclude that the post-2006 amendment version of 38 C.F.R. § 3.156(c) was also not applicable in the Veteran's case in January 2010. As reasonable minds could differ regarding the applicability of 38 C.F.R. § 3.156(c) in January 2010, the Board concludes that January 2010 Board decision did not contain CUE in not considering 38 C.F.R. § 3.156(c) in its denial of earlier effective dates for residuals of a frenulectomy, residuals of burn scars, and PTSD. As such, the Board denies the Veteran's motion for revision. 38 C.F.R. §§ 20.1400-20.1406. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.