Citation Nr: A25041223 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 221013-286922 DATE: May 6, 2025 ORDER The November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was not the product of clear and unmistakable error (CUE). FINDINGS OF FACT 1. The Veteran's active service from September 28, 2009, to November 2, 2015, is considered dishonorable for VA adjudication purposes; thus, service connection for any disability incurred during this period of service is prohibited as a matter of law. 2. In a rating decision dated on November 6, 2018, and issued to the Veteran and his former service representative on November 20, 2018, the Agency of Original Jurisdiction (AOJ) severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, because the record evidence showed that this disability was incurred during his period of dishonorable active service. 3. The Veteran disagreed, in pertinent part, with the severance of service connection for chronic plantar fasciitis effective February 1, 2019, in the November 6, 2018, rating decision in statements on a VA Form 21 0958, "Notice Of Disagreement," dated on September 5, 2019, and date-stamped as received electronically that same day by VA. 4. The AOJ issued a Legacy Statement Of the Case (SOC) dated on February 5, 2020, to the Veteran and his attorney which included the propriety of severance of service connection for chronic plantar fasciitis effective February 1, 2019; because the Veteran did not perfect a timely Legacy appeal, the November 6, 2018, rating decision became final. 5. The Veteran, through his attorney, filed a VA Form 20 0996, "Decision Review Request: Higher Level Review," dated on August 3, 2020, and date-stamped as received electronically that same day by VA, requested Higher Level Review (HLR) of the February 2020 SOC, and essentially asserted that the November 6, 2018, rating decision was the product of CUE; the AOJ interpreted the filing of this VA Form 20-0996 as an opt-in to the AMA. 6. The AOJ denied the Veteran's claim of CUE in the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, in an AMA HLR rating decision dated on December 28, 2020, and issued to the Veteran and his attorney on December 29, 2020. 7. The Veteran, through his attorney, filed a VA Form 20 0995, "Decision Review Request: Supplemental Claim," dated on September 10, 2021, and date-stamped as received electronically by VA that same day in which he again essentially asserted that the November 6, 2018, rating decision was the product of CUE. 8. In a supplemental claim rating decision dated on March 14, 2022, and issued to the Veteran and his attorney on March 15, 2022, the AOJ confirmed and continued the denial of service connection for chronic plantar fasciitis. 9. The Veteran, through his attorney, filed a VA Form 20-0996, "Decision Review Request: Higher Level Review," dated on August 3, 2022, and date-stamped as received electronically that same day by VA, and requested HLR of the March 2022 rating decision. 10. In the currently appealed AMA HLR rating decision dated on September 23, 2022, and issued to the Veteran and his attorney on September 26, 2022, the AOJ found that the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 2, 2019, was not the product of CUE. 11. The Veteran filed a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on October 13, 2022, and date-stamped as received electronically by VA that same day and requested Board review of the September 2022 AMA HLR rating decision. 12. Statements concerning the Veteran's entitlement to restoration of service connection for chronic plantar fasciitis effective February 2, 2019, based on CUE reflect disagreement with how the AOJ weighed the evidence when it severed service connection for this disability in the November 6, 2018, rating decision. CONCLUSION OF LAW The November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active U.S. Army service from September 29, 1999, to September 28, 2009, including in combat in Kuwait. He also had a period of dishonorable active U.S. Army service from September 29, 2009, to November 2, 2015; thus, service connection is prohibited for any disability incurred during this period of dishonorable active service. This appeal has a long and complicated procedural history. In August 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a February 2020 Legacy SOC. In December 2020, the AOJ issued an HLR decision which considered the evidence of record at the time of the February 2020 SOC and found that the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was not the product of CUE. In September 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and essentially requested readjudication of the issue of whether November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was the product of CUE most recently addressed in a December 2020 rating decision. In March 2022, the AOJ issued a supplemental claim decision which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of the December 2020 decision. In August 2022, the Veteran submitted another VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) and requested review of a March 2022 decision. In September 2022, the AOJ issued the HLR decision on appeal which considered the evidence of record at the time of the prior decision and found that the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was not the product of CUE. In the October 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket and identified the September 2022 HLR decision as the decision on appeal. Therefore, the Board only may consider the evidence of record at the time of the March 2022 AOJ decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, then the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim listed above, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, then he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record, to include entitlement to an additional disability rating, an extraschedular rating for a service-connected disability, service connection for another disability as secondary to a service-connected disability, or to a total disability rating based on individual unemployability (TDIU). See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). The Veteran and his attorney essentially contend that the AOJ committed CUE in the November 6, 2018, rating decision when it severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019. They essentially contend that the AOJ misinterpreted the extant record evidence and misapplied the law and regulations in the November 6, 2018, rating decision. They specifically contend that the AOJ erred when it did not consider that, although the Veteran initially complained of and was treated for chronic plantar fasciitis during his period of dishonorable active service, this disability presumably originated during his prior period of honorable active service. They alternatively contend that the AOJ erred by not inferring and adjudicating a separate service connection claim for bilateral pes planus as an ancillary benefit to his service connection claim for chronic plantar fasciitis under 38 C.F.R. § 3.155(d)(2). They also alternatively contend that the Veteran is, in fact, entitled to service connection for bilateral pes planus based on in-service aggravation of pre-existing disability. They finally contend that, but for AOJ CUE in the November 6, 2018, rating decision, the Veteran is entitled to restoration of service connection for chronic plantar fasciitis effective February 1, 2019, or the day that the AOJ severed service connection for this disability. These arguments do not rise to the level of a valid CUE claim. The record evidence shows that the AOJ properly severed service connection for chronic plantar fasciitis effective February 2, 2019, in the November 6, 2018, rating decision because this disability was incurred during a period of dishonorable active service and service connection is prohibited for any disability incurred during such service. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.12(c). The AOJ reviewed the Veteran's available service personnel records and an administrative decision dated in November 2017 concerning the character of his active service. The AOJ concluded that the Veteran's conviction by general court-martial which resulted in a sentence of confinement by military authorities of almost 3 years from December 2012 until his subsequent separation from service in November 2015 was a bar to receipt of VA benefits for any disability incurred during this period of dishonorable active U.S. Army service from September 29, 2009, to November 2, 2015. See 38 C.F.R. § 3.12(c)(2). The notation of asymptomatic pes planus at service entrance in June 1998 and the actual or constructive possession of service treatment records by VA prior to the November 6, 2018, rating decision alone does not establish that the Veteran sought service connection for bilateral pes planus. The argument advanced by the Veteran and his attorney also does not consider the finality of the November 6, 2018, rating decision. In challenging the November 6, 2018, rating decision on the basis of CUE, the Veteran and his attorney essentially disagree with how the AOJ weighed the record evidence in that prior final rating decision which can never rise to the level of a valid CUE claim. The record evidence shows that the Veteran submitted a statement concerning the character of his discharge from active service on a VA Form 21-4138, "Statement In Support Of Claim," dated on April 28, 2017, and date-stamped as received electronically by VA on May 5, 2017. He contended that, prior to the date of his general court-martial, he "was a highly decorated, innovative and charismatic leader who climbed the enlisted ranks with unrivaled speed....I lost my way and eventually lost who I was as a person, leader, husband, father, and Soldier in the Army. I indulged in inappropriate behavior with my subordinate Soldiers." He also contended, "Although I take full responsibility for my actions, it is my prayer that my service before and after will be considered honorable regarding my VA benefits....The medical conditions I acquired were solely as a result of me trying to be the best Soldier I could." He concluded that his in-service behavior was an "isolated event." In a November 2017 Administrative Decision, AOJ personnel concluded that the Veteran's period of active service from September 29, 2009, to November 2, 2015, was considered dishonorable for VA purposes because he was convicted and sentenced following a general court-martial. AOJ personnel also concluded in this Administrative Decision that the Veteran's conviction and sentence following a general court-martial was a bar to receipt of VA benefits for this period of dishonorable active service under 38 C.F.R. § 3.12(c)(2). Id. In a rating decision dated on December 8, 2017, and issued to the Veteran and his former service representative on December 13, 2017, the AOJ proposed to sever service connection for chronic plantar fasciitis. The AOJ stated that the Veteran's active service from September 29, 2009, to November 2, 2015, was considered dishonorable for VA purposes. The AOJ also stated: An injury or disease incurred or aggravated during a period of service that is deemed dishonorable for VA purposes is not subject to service connected compensation. In this case, because the evidence clearly and unequivocally shows that your chronic plantar fasciitis was incurred in or caused by your dishonorable period of service, we cannot permit continued entitlement to service connection for this condition. The Veteran was given 60 days to provide additional evidence and, if he did not, the proposed severance of service connection would be implemented by VA "effective the first day of the month following 60 days from the date you are notified that the final action is being taken." In a rating decision dated on November 6, 2018, and issued to the Veteran and his former service representative on November 20, 2018, the AOJ severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, because the record evidence showed that this disability was incurred during his period of dishonorable active service. The Veteran disagreed, in pertinent part, with the severance of service connection for chronic plantar fasciitis effective February 1, 2019, in the November 6, 2018, decision in statements on a VA Form 21 0958, "Notice Of Disagreement," dated on September 5, 2019, and date-stamped as received electronically that same day by VA. The Veteran's attorney attached a letter labelled "Supplement To Notice Of Disagreement" to the VA Form 21 0958 in which he argued that a December 2018 private medical opinion from Dr. M. R. (also attached to the VA Form 21 0958) demonstrated that both the Veteran's chronic plantar fasciitis and his bilateral pes planus began during his honorable period of active service. The attorney also attached a Board decision to the VA Form 21-0958 as support for his argument that the Veteran was entitled to an initial 30 percent rating for the service-connected chronic plantar fasciitis. The AOJ issued a Legacy SOC dated on February 5, 2020, to the Veteran and his attorney which included the propriety of severance of service connection for chronic plantar fasciitis effective February 1, 2019. The AOJ essentially concluded in the SOC that no change was required in the decision to sever service connection for chronic plantar fasciitis effective February 1, 2019, because this disability began during a dishonorable period of active service. The AOJ also stated: You submitted an opinion from a private provider stating the records show symptoms of plantar fasciitis prior to 2012. This is not true....[T]he records show symptoms of plantar fasciitis beginning in January 2012. Your provider further related plantar fasciitis to pes planus which preexisted service. These are separate diagnoses. You have never claimed service connection for pes planus. Service treatment records during your honorable service contain no complaints related to pes planus or plantar fasciitis. There is no evidence in your file in support of your provider's conclusions. In a letter attached to the August 2020 VA Form 20 0996, the Veteran's attorney essentially argued that the AOJ committed CUE in the November 6, 2018, rating decision when it severed service connection for chronic plantar fasciitis effective February 1, 2019. He also contended that the AOJ committed CUE in the November 6, 2018, rating decision by not inferring and adjudicating a separate service connection claim for bilateral pes planus which existed prior to active service and was aggravated by service. He further contended that the Veteran's chronic plantar fasciitis "had been present for a long time prior to 2012" based on a review of the extant medical evidence. He cited the private medical opinion dated in December 2018 from Dr. M. R. as support for his argument. The AOJ denied the Veteran's claim of CUE in the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, in an AMA HLR rating decision dated on December 28, 2020, and issued to the Veteran and his attorney on December 29, 2020. The AOJ noted that the governing law and regulations barred VA benefits for any period of service where a former service member is discharged following a sentence of a general court-martial. The AOJ reviewed the facts and circumstances of the Veteran's period of active service from September 29, 2009, to November 2, 2015, and found that his conviction and sentence by a general court-martial was a bar to VA benefits for any disability incurred during this period of service. The AOJ concluded, "In this case, because the evidence clearly and unequivocally shows that your chronic plantar fasciitis was incurred in or caused by your dishonorable period of service, we cannot permit continued entitlement to service connection for this condition." The Veteran, through his attorney, filed a VA Form 20 0995, "Decision Review Request: Supplemental Claim," dated on September 10, 2021, and date-stamped as received electronically by VA that same day in which he again essentially asserted that the November 6, 2018, rating decision was the product of CUE. The attorney attached a CUE motion to the VA Form 20 0995 and contended that the AOJ committed CUE when it severed service connection for chronic plantar fasciitis effective February 1, 2019. The attorney argued in the alternative that "the Veteran's Chronic Plantar Fasciitis was a progression of the aggravated, service-related Pes Planus. This service-related disability warrants a rating of 30%, with an effective date of February 1, 2019, when the proposal to sever service connection was finalized." The attorney also contended that both the Veteran's chronic plantar fasciitis and bilateral pes planus began during his honorable period of active service. He further contended that, because bilateral pes planus was an "ancillary benefit" of the service connection claim for chronic plantar fasciitis, a claim of service connection for bilateral pes planus was raised implicitly by the medical evidence at the time of the November 6, 2018, rating decision. He finally contended that the Veteran is entitled to service connection for bilateral pes planus on the basis of in-service aggravation of pre-service disability and under 38 C.F.R. § 3.155(d)(2). In a supplemental claim rating decision dated on March 14, 2022, and issued to the Veteran and his attorney on March 15, 2022, the AOJ confirmed and continued the denial of service connection for chronic plantar fasciitis. The Veteran, through his attorney, filed a VA Form 20-0996, "Decision Review Request: Higher Level Review," dated on August 3, 2022, and date-stamped as received electronically that same day by VA, and requested HLR of the March 2022 rating decision. He identified the issue on appeal as a claim of service connection for chronic plantar fasciitis. In the currently appealed AMA HLR rating decision dated on September 23, 2022, and issued to the Veteran and his attorney on September 26, 2022, the AOJ found that the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 2, 2019, was not the product of CUE. The AOJ reviewed the extant record evidence at the time of the November 6, 2018, rating decision, to include service treatment records showing in-service incurrence of chronic plantar fasciitis in 2012 and the November 2017 administrative decision concerning his dishonorable period of active service from September 29, 2009, to November 2, 2015. The AOJ stated: The available evidence at the time of our decision to sever service[] connection demonstrated that your service from September 29, 2009, to November 2, 2015, was dishonorable, and that you were initially diagnosed with plantar fasciitis during this timeframe in January 2012. Therefore, the decision to sever this disability was correct at the time it was made and no [CUE] is found. The AOJ also reviewed the private medical opinion from Dr. M. R. received after the November 2018 rating decision (but before the February 2020 Legacy SOC) and concluded that this opinion "is not found persuasive and consistent on a factual basis with all other evidence of record considering the clear documentation of onset of this diagnosis in your service treatment records." The AOJ further stated that, because the Veteran had never claimed service connection for bilateral pes planus, "consideration of service connection for pes planus or any relationship to possible aggravation of that disability is outside the scope of this review." The AOJ essentially concluded that it was not CUE to sever service connection in the November 6, 2018, rating decision because "the weight of the evidence supports that your plantar fasciitis was incurred during a dishonorable period of service which is considered a bar to the payment of VA benefits." The Veteran filed a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on October 13, 2022, and date-stamped as received electronically by VA that same day and requested Board review of the September 2022 AMA HLR rating decision. The Veteran's attorney submitted an appellate brief in March 2025 in support of the CUE claim. This brief repeated arguments previously submitted in support of the Veteran's CUE claim. The Board notes that previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). To establish a valid CUE claim, a Veteran must show that either the correct facts, as they were known at the time, were not before the adjudicator or that the statutory or regulatory provisions extant at the time were applied incorrectly. Russell v. Principi, 3 Vet. App. 310 (1992). The Court has stressed consistently the rigorous nature of the concept of CUE. CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors are errors that are undebatable so that it can be said that reasonable minds could conclude only that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313-4. It must be remembered that CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-prong test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). 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 CUE. Allegations that previous adjudications had weighed and evaluated the evidence improperly also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43 44. An AOJ's failure to address an implied claim is an action that can be challenged through a motion of CUE. Deshotel v. Nicholson,?457 F.3d 1258?(Fed. Cir. 2006); Richardson v. Nicholson, 20?Vet. App.?64?(2006). When presented with such a request, VA first must give a full and sympathetic reading to the claimant's prior submissions to determine whether such a claim was reasonably raised. Roberson v. Principi,?251 F.3d 1378?(Fed. Cir. 2001); Szemraj v. Principi,?357 F.3d 1370?(Fed. Cir. 2004). If it is determined that a claim was reasonably raised, then VA must determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, that claim still must be adjudicated. If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE. Richardson,?20?Vet. App.?64. The Board again notes that CUE is a very specific and rare kind of error and a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Id.; see also Luallen, 8 Vet. App. at 96. In challenging the severance of service connection for chronic plantar fasciitis effective February 2, 2019, in the November 6, 2018, rating decision, the Veteran and his attorney essentially contend that the AOJ misinterpreted the extant record evidence and misapplied the law and regulations in that rating decision. They specifically contend that the AOJ erred when it did not consider that, although the Veteran complained of and was treated for chronic plantar fasciitis during his period of dishonorable active service, this disability presumably originated during his period of honorable active service. They alternatively contend that the AOJ erred in the November 6, 2018, rating decision by not inferring and adjudicating a separate service connection claim for bilateral pes planus as an ancillary benefit to his service connection claim for chronic plantar fasciitis under 38 C.F.R. § 3.155(d)(2). They also alternatively contend that the Veteran is entitled to service connection for bilateral pes planus based on in-service aggravation of a pre-existing disability. They finally contend that, but for AOJ CUE in the November 6, 2018, rating decision, the Veteran is entitled to restoration of service connection for chronic plantar fasciitis effective February 1, 2019, or the day that the AOJ severed service connection for this disability. These arguments do not rise to the level of a valid CUE claim. With respect to the argument that the AOJ committed CUE in the November 6, 2018, rating decision by misinterpreting the record evidence and misapplying the extant law at that time, the Board notes initially that this argument merely reflects disagreement with how the AOJ weighed the evidence in that rating decision. Such argument never rises to the level of a valid CUE claim. The Board notes here that the attorney repeatedly argued that the Veteran's in-service complaints of and treatment for plantar fasciitis which was refractory to conservative treatment and also treated with what the attorney characterized as "unproven treatments" in 2012 and in 2014 somehow demonstrated that this disability was incurred prior to the dishonorable period of active service which began on September 29, 2009. The Veteran's attorney also repeatedly cited a private medical opinion from Dr. M. R. dated in December 2018 and associated with the claims file after the November 6, 2018 rating decision (but prior to a February 2020 Legacy SOC) supported finding CUE in the November 6, 2018, rating decision and restoring service connection for chronic plantar fasciitis effective February 1, 2019. These arguments are not persuasive. With respect to the argument that the Veteran's in-service complaints of and treatment for chronic plantar fasciitis supports reinstating service connection for this disability effective February 1, 2019, the Board notes that these in-service complaints of and treatment for chronic plantar fasciitis repeatedly cited by his attorney occurred in 2012 and in 2014 during the Veteran's dishonorable period of active service. The attorney's assertions that the use of what he characterized as "unproven treatments" in 2012 to treat the Veteran's chronic plantar fasciitis does not change the fact that this treatment occurred during a dishonorable period of active service. Nor does it demonstrate "the fact that [the Veteran's] plantar fasciitis had been present for a long time prior to 2012, as conservative treatments for the past years had failed," as the Veteran's attorney repeatedly asserted in his submissions to VA. The Board notes in this regard that the Veteran's attorney is not competent, as a lay person, to diagnose plantar fasciitis (or any other disability) or provide an opinion as to the onset date of this disability. And, although the Veteran is competent to report that his feet hurt during his period of honorable active service (i.e., prior to September 29, 2009), he is not competent, as a lay person, to diagnose plantar fasciitis or relate it to active service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Because the extant record evidence showed that the Veteran incurred chronic plantar fasciitis during a dishonorable period of active service, the Board finds that it was not CUE for the AOJ to sever service connection for chronic plantar fasciitis effective February 1, 2019, in the November 6, 2018, rating decision on that basis. With respect to the argument that submission of a private medical opinion from Dr. M. R. in December 2018 supports finding CUE in the November 6, 2018, rating decision and reinstating service connection for chronic plantar fasciitis effective February 1, 2019, the Board notes that a valid claim of CUE must be based on the record evidence at the time of the prior final rating action challenged in a CUE motion and not on any evidence subsequently received by VA. See Damrel, 6 Vet. App. at 245. Submission of a private medical opinion from Dr. M. R. dated in December 2018 purporting to relate the onset of the Veteran's chronic plantar fasciitis to his period of honorable active service (prior to September 29, 2009) does not change the fact the AOJ severed service connection for this disability in the November 6, 2018, rating decision based on the extant record evidence which showed that he incurred this disability during a dishonorable period of active service. In other words, this evidence was not before the AOJ at the time of the prior final rating decision challenged in this CUE appeal. It would have been impossible for the AOJ to review the private medical opinion from Dr. M. R. dated in December 2018 at the time of the November 6, 2018, rating decision, which severed service connection for chronic plantar fasciitis effective February 1, 2019, because this evidence was submitted to VA after the November 6, 2018, rating decision. Critically, the AOJ discussed this private medical opinion in the February 2020 Legacy SOC and concluded that it did not support reinstating service connection for chronic plantar fasciitis effective February 1, 2019, because it was based on an inaccurate factual premise (i.e., that the Veteran incurred chronic plantar fasciitis during his honorable active service) and consequently had little probative value. See, for example, Wilson v. Derwinski, 2 Vet. App. 614 (1992), and Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The AOJ similarly discussed the lack of probative value assigned to the private medical opinion dated in December 2018 from Dr. M. R. in the currently appealed AMA HLR rating decision issued in September 2022. Id. In both the February 2020 Legacy SOC and the currently appealed AMA HLR rating decision issued in September 2022, the AOJ clearly explained why submission of this private medical opinion did not support finding that the November 6, 2018, rating decision was the product of CUE. Thus, the Board finds that submission of a December 2018 private medical opinion purporting to offer an etiological link between the Veteran's chronic plantar fasciitis and active service does not support finding that the AOJ committed CUE in the November 6, 2018, rating decision. With respect to the argument that the AOJ committed CUE in the November 6, 2018, rating decision by not inferring and adjudicating a separate service connection claim for bilateral pes planus as an ancillary benefit to his service connection claim for chronic plantar fasciitis under 38 C.F.R. § 3.155(d)(2), the Board notes initially that this argument merely reflects disagreement with how the AOJ weighed the evidence in that rating decision. Such argument never rises to the level of a valid CUE claim. The Veteran's attorney argued in the CUE motion that a service connection claim for bilateral pes planus was reasonably raised by the extant record evidence at the time of the November 6, 2018, rating decision. This argument is not supported by the record evidence at that time even under a full and sympathetic reading of the Veteran's submissions dated prior to the rating decision challenged in this CUE appeal. See Roberson,?251 F.3d at 1378. The AOJ specifically found in the currently appealed AMA HLR decision issued in September 2022 that the Veteran had never claimed service connection for bilateral pes planus. This AOJ finding is in accord with a review of the extant record evidence dated prior to the November 6, 2018, rating decision challenged in this CUE appeal which demonstrates that the Veteran never filed a formal service connection claim for bilateral pes planus. The Veteran included his original claim of service connection for chronic plantar fasciitis in statements on a January 25, 2017, VA Form 21-526EZ, "Application For Disability Compensation And Related Benefits." He did not file a claim of service connection for bilateral pes planus at that time. The AOJ advised the Veteran in March 2017 correspondence that the service department (here, the U.S. Army) had informed VA that the Veteran's active service was dishonorable and a determination would be made regarding his entitlement to VA benefits for any period of service which was not dishonorable. In response, the Veteran submitted a statement received by VA in May 2017 concerning his active service (as discussed above). The AOJ granted service connection for chronic plantar fasciitis and assigned a 30 percent rating effective January 25, 2017, in a rating decision dated on September 16, 2017, and issued to the Veteran and his former service representative on September 18, 2017. The AOJ then issued an administrative decision in November 2017 concerning the nature of the Veteran's honorable and dishonorable periods of active service which resulted ultimately in the November 6, 2018, rating decision which severed, in pertinent part, service connection for chronic plantar fasciitis. Having reviewed the record evidence, the Board cannot conclude that a service connection claim for bilateral pes planus was reasonably raised by any of the Veteran's submissions when he filed his formal service connection claim for chronic plantar fasciitis in January 2017 which was adjudicated in a September 2017 rating decision and subsequently severed in the November 2018 rating decision challenged in this CUE appeal. Thus, the Board finds that the AOJ did not commit CUE in the November 6, 2018, rating decision when it did not infer and adjudicate a service connection claim for bilateral pes planus. The Court has held repeatedly that "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing are the essential requirements of any claim." See, for example, Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Court held in Brokowski that, "Although the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant." Id., at 84 85 (citations omitted) (internal quotations omitted). Here, the Veteran's attorney essentially asks the Board to "conjure up" a service connection claim for bilateral pes planus when it was not reasonably raised by the record evidence or by the Veteran who also did not express any intent to file this claim, identify that he sought service connection for bilateral pes planus, and did not communicate in writing any intent to seek or file for service connection for bilateral pes planus. As a result, the Board finds that it was not CUE for the AOJ not to infer and adjudicate a service connection claim for bilateral pes planus in the November 6, 2018, rating decision based on the extant record evidence or the actual or constructive possession of any records dated prior to this date. The Veteran's attorney argues in the alternative that service connection for bilateral pes planus is warranted as an ancillary benefit to the service connection claim for chronic plantar fasciitis under 38 C.F.R. § 3.155(d)(2) and it was CUE for the AOJ not to infer and adjudicate such claim in the November 6, 2018, rating decision based on this regulation. This argument is not persuasive and does not support finding that there was CUE in the November 6, 2018, rating decision. It merely reflects disagreement with how the AOJ weighed the evidence in the November 6, 2018, rating decision which can never be a valid CUE claim. The Board notes that the predicate requirement for consideration of ancillary benefits under § 3.155(d)(2) is that service connection must be awarded for a disability in order to adjudicate any claim for ancillary benefits encompassed within the scope of that service connection claim. Here, service connection is not in effect for chronic plantar fasciitis such that a service connection claim for bilateral pes planus (or any other disability) reasonably could be considered an ancillary benefit encompassed within the scope of the service connection claim for chronic plantar fasciitis. More importantly, the Veteran did not include a formal claim of service connection for bilateral pes planus when he filed his formal service connection claim for chronic plantar fasciitis in January 2017. The AOJ's decision granting service connection for chronic plantar fasciitis in the September 2017 rating decision - although subsequently severed in the November 2018 rating decision challenged in this appeal - included an implicit determination by VA under § 3.155(d)(2) that there was no ancillary claim of service connection for bilateral pes planus reasonably included within the scope of that adjudicated claim. Id. The AOJ specifically found in the February 2020 Legacy SOC that plantar fasciitis and pes planus "are separate diagnoses." The Court also has held that informal claims are barred by regulation effective March 24, 2015, and a valid pending claim after that date only includes either an intent to file or a standard claim form. See Kriner v. McDonough, 37 Vet. App. 41 (2023). The Court in Kriner also validated the requirements of an intent to file to file a VA claim found in § 3.155. Id. Here, there is no intent to file or standard claim form dated prior to the November 6, 2018, rating decision which contained a service connection claim for bilateral pes planus. Having reviewed the record evidence, the Board finds that it was not CUE for the AOJ not to infer and adjudicate a claim of service connection for bilateral pes planus in the November 6, 2018, rating decision as an ancillary benefit to his service connection claim for chronic plantar fasciitis under 38 C.F.R. § 3.155(d)(2). The Veteran's attorney next argues in the alternative that the notation of asymptomatic bilateral pes planus at the Veteran's enlistment physical examination in June 1998, prior to his entry on to active service in September 1999, supports granting service connection for this disability on the basis of in-service aggravation of pre-service disability. The Veteran's attorney also argues that, after asymptomatic bilateral pes planus was noted on the Veteran's enlistment physical examination in June 1998, medical evidence dated during the dishonorable period of active service supports finding that the pre-service bilateral pes planus noted at service entrance was aggravated during service. These arguments do not support finding that there was CUE in the November 6, 2018, rating decision. They instead merely reflect disagreement with how the AOJ weighed the evidence in the November 6, 2018, rating decision which can never be a valid CUE claim. The extant record evidence at the time of the November 6, 2018, rating decision did not include a formal service connection claim for bilateral pes planus based on in-service incurrence during the Veteran's honorable period of active service. In other words, the AOJ did not commit CUE when it did not infer or adjudicate a separate service connection claim for bilateral pes planus, including on the basis of in-service aggravation of pre-service disability, in the November 6, 2018, rating decision. The AOJ specifically stated in the February 2020 Legacy SOC that the available service treatment records for the Veteran's honorable period of active service "contain no complaints related to pes planus." The attorney cannot rely on complaints of or treatment for any disability which occurred during the Veteran's dishonorable period of active service as support for granting service connection for any disability, including on the basis of in-service aggravation of pre-service disability. The fact remains that the AOJ severed service connection for chronic plantar fasciitis in the November 6, 2018, rating decision because the Veteran complained of and sought treatment for (or incurred) this disability during his dishonorable period of active service. Having reviewed the record evidence, the Board finds that, because the notation of asymptomatic bilateral pes planus at the Veteran's enlistment physical examination in June 1998 does not support granting service connection for this disability on the basis of in-service aggravation of pre-service disability, the AOJ did not commit CUE in the November 6, 2018, rating decision by not inferring and adjudicating a service connection claim for bilateral pes planus on that basis. With respect to the argument that, but for AOJ CUE in the November 6, 2018, rating decision, the Veteran is entitled to restoration of service connection for chronic plantar fasciitis effective February 1, 2019, or the day that the AOJ severed service connection for this disability, the Board again notes that this argument reflects a disagreement with how the AOJ weighed the record evidence in that decision. The Veteran and his attorney essentially asserted in the CUE motion that he is entitled to restoration of service connection for chronic plantar fasciitis effective February 1, 2019, or the day that the AOJ severed service connection for this disability, based on CUE in the November 6, 2018, rating decision. They also argued that the Veteran is entitled to service connection for bilateral pes planus effective July 1, 2015, on the basis of in-service aggravation of pre-service disability and because bilateral pes planus is an ancillary benefit included within the scope of his original service connection claim for chronic plantar fasciitis under § 3.155(d)(2). As discussed above, the Board already has found that the AOJ did not commit CUE when it severed service connection for chronic plantar fasciitis effective February 1, 2019, because the Veteran incurred this disability during a period of dishonorable active service. The Board also already has found that the AOJ did not commit CUE when it did not infer and adjudicate a service connection claim for bilateral pes planus as within the scope of the service connection claim for chronic plantar fasciitis under § 3.155(d)(2). Thus, the Board finds that the arguments concerning entitlement to restoration of service connection for chronic plantar fasciitis effective February 1, 2019, and entitlement to service connection for bilateral pes planus effective July 1, 2015, on the basis of CUE in the November 6, 2018, rating decision are without merit. Having reviewed the Veteran's arguments concerning an allegation of CUE in the November 2018 rating decision, the Board finds that they do not rise to the level of a valid CUE claim. These arguments essentially dispute how the AOJ weighed the record evidence at the time of the November 2018 rating decision and never rise to the level of a valid CUE claim. Even assuming for the sake of argument only that there was error in the November 6, 2018, rating decision, because it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. In this rating decision, the AOJ considered the available service personnel records which showed that the Veteran was convicted and sentenced following a general court-martial. The AOJ next considered the available service treatment records which showed that he incurred chronic plantar fasciitis in 2012. The AOJ also considered a November 2017 administrative decision which concluded that the Veteran's active service from September 29, 2009, to November 2, 2015, was considered dishonorable for VA purposes because of his conviction and sentence following a general court-martial. In other words, the record evidence demonstrates what the AOJ previously concluded in the November 2018 rating decision, i.e., that service connection should be severed for chronic plantar fasciitis because this disability was incurred during a period of dishonorable active service. Thus, it is not absolutely clear that a different result would have ensued under the interpretation advanced by the Veteran in his CUE motion. Because it is not absolutely clear to the Board that a different result would have ensued if the AOJ had weighed the record evidence under the theory advanced by the Veteran in this appeal, any alleged error made by the AOJ in the November 6, 2018, rating decision concerning the severance of service connection for chronic plantar fasciitis effective February 1, 2019, is not CUE. And, as noted above, the AOJ's conclusions in the November 6, 2018, rating decision with respect to the severance of service connection for chronic plantar fasciitis effective February 1, 2019, were fully supported by the available evidence at the time of that decision. The record evidence does not support finding that the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was the product of CUE. The Veteran and his attorney otherwise have not identified or submitted any evidence demonstrating that the November 6, 2018, rating decision was the product of CUE. The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In summary, the Board finds that the November 6, 2018, rating decision, which severed, in pertinent part, service connection for chronic plantar fasciitis effective February 1, 2019, was not the product of CUE. The appeal is denied. S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.