Citation Nr: 1754164	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-02 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an effective date prior to February 10, 2010 for the award of service connection for varicose veins in the right lower extremity, to include whether there was clear and unmistakable error (CUE) in May 1980 rating decisions.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Murray, Counsel 

INTRODUCTION

The Veteran served on active duty in the United States Army from August 1972 to August 1974 and from November 1974 to November 1979. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision by the Department of Veterans Affairs, Regional Office, located in Waco, Texas (RO), which in pertinent part, awarded service connection for varicose veins.  The Veteran only appealed the assigned effective date. 

In September 2015, the Veteran testified before the undersigned during a Board hearing held at the RO.  A copy of the hearing transcript has been associated with the claims folder. 

In January 2016, the Board remanded the matter on appeal to the RO for initial consideration of a claim of CUE in the prior rating decision and deferred consideration of earlier effective date claim as inextricably intertwined.  The CUE claim as well as the earlier effective date claim were addressed in an August 2016 supplemental statement of the case (SSOC). 


FINDINGS OF FACT

1.  In determining that service connection for varicose veins in the right leg was not warranted, the May 1980 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. 

2.  On February 10, 2010, VA received the Veteran's petition to reopen his previously denied claim and his claim was continuously adjudicated thereafter.  



CONCLUSIONS OF LAW

1.  The May 1980 rating decision that denied service connection for varicose veins in right leg was not clearly and unmistakably erroneous.  38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017).

2.  Entitlement to an effective date prior to February 10, 2010 for the award of service connection for varicose veins right lower extremity is not warranted.  38 U.S.C.A. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  VA's Duty to Notify and Assist 

VA has duty to provide claimants with notice and assistance.  38 U.S.C §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

In this case, the Veteran has appealed with respect to the propriety of the assigned effective date for the award of service connection for varicose veins in the right lower extremity from the original grant of service connection.  There is no further duty to provide notice for downstream issue following award of service connection. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004); Dingess v. Nicholson, 19 Vet. App. 473, 490  (2006); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 

Relevant to the duty to assist, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's service connection claim.  However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his petition to reopen, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the record.  There is no outstanding information or evidence that would help substantiate the Veteran's claim.  See VAOPGCPREC 5-04 (June 23, 2004).

Additionally, in September 2015 the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  During the hearing, the Veteran's assertion of CUE in the May 1980 rating decision was acknowledged and testimony was taken as to the specific assertions of CUE.  In addition, the Veteran provided detailed argument in support of his contention that an earlier effective date was warranted for the award of service connection.  The Board finds that the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103 (c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

The RO has complied with the January 2016 remand directives by readjudicating the claim of entitlement to an effective date for the grant of service connection for varicose veins, to include whether there was CUE in the May 1980 rating decision that denied the claim, as applicable to the instant claim, and, as such, that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

Finally, with regard to the Veteran's allegation of CUE in the prior rating decisions, the Board finds that the VA duty to notify and assist does not apply to such aspect of the Veteran's claim as a matter of law.  See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  

2.  Earlier Effective Date

The Veteran contends that the denial of his original claim for service connection for varicose veins in the right leg in the May 1980 rating decision contained CUE as the RO did not properly consider service treatment records dated in November 1978 which showed assessment of idiopathic varicose veins in the right lower extremity.  Therefore, the Veteran contends that an effective date of February 28, 1980, the date VA received his original claim for service connection, is warranted.

The Board will first consider the Veteran's assertion of CUE in the May 1980 rating decision, and it will then address the claim for entitlement to an earlier effective date. 

CUE in the May 1980 Rating Decision 

Under the provisions of 38 C.F.R. § 3.105 (a)(2017), previous determinations that are final and binding will be accepted as correct in the absence of CUE.  In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim.  An error is in either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.  Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  

Further, 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 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.  Id.  Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993).

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).  It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo, 6 Vet. App. at 43. 

Where evidence establishes CUE, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating 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. §§ 3.104 (a), 3.400(k).

The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither 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, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14.

To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE."  Fugo, 6 Vet. App. at 43-44 (1993).  It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger.

Under the law extant in May 1980, service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131 (1979).  

Additionally, as noted, a CUE claim must be based on the evidence in the record when the prior decision was rendered.  Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001).

In reviewing all of the evidence on file, the Board finds no CUE of fact or of law in the RO's May 1980 rating decision with respect to the denial of service connection for varicose veins in the right leg.  The evidence before the RO in May 1980 included the Veteran's service treatment records and VA examination report dated in April 1980.  In the May 1980 rating decision, the RO discussed the evidence of record, including a November 1978 service treatment record that showed assessment of idiopathic varicose veins, nonsymptomatice, but denied the claim for service connection because the "[c]urrent examination shows no... varicose veins were found."  This decision was signed by three rating specialists.

The Board observes that this summary of the facts in the May 1980 rating decision is accurate.  As indicated above, the Veteran underwent a VA examination in April 1980.  The VA examiner recorded that when asked about varicose veins, the Veteran responded that he was not aware that he had varicose veins.  No varicose veins were observed on clinical evaluation.  After examination of the Veteran, the VA examiner declined to diagnose the Veteran with varicose veins as such were not found on examination.  Therefore, the Veteran's varicose veins claim was denied in the May 1980 rating decision based on the absence of manifestations of a current disability. 

Here, it is not clear that "the correct facts" were not before the adjudication officers in May 1980.  To the contrary, the adjudication officers are presumed to have considered all the evidence.  And, the rating decision's summary of the facts is entirely true to the extent the adjudication officers correctly wrote that there was no current evidence of varicose veins and that such was not diagnosed during the April 1980 VA examination.  Accordingly, the correct facts were before the adjudicators in May 1980 and there is no clear and unmistakable of fact in that decision.

Additionally, in all material respects, the law in effect at the time of the May 1980 rating decision was the same as it is at present with regard to evidence demonstrating a current disability.  See 38 C.F.R. § 3.303 (1980).  The evidence of record in May 1980 did not undebatably establish current disability of varicose veins in the right lower extremity.  In other words, the evidence of record at that time was not clearly and unmistakably in the Veteran's favor in establishing service connection.

In light of the foregoing, the Board concludes that the correct facts, as known at the time, were before VA adjudicators who denied the claim for service connection and that the statutory and regulatory provisions extant at the time were correctly applied.  The Board finds that there was no error which was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.  Accordingly, the claim for CUE in the May 1980 rating decision must be denied for the aforementioned reasons.

Earlier Effective Date Claim

Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor.  38 U.S.C. § 5110 (a) (2012).  The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (emphasis added).

The basic facts in this case are not in dispute.  The Veteran initially filed a claim for service connection for varicose veins in February 1980.  As discussed previously, such claim was denied in a final May 1980 rating decision.  38 U.S.C.A. § 7105 (c) (1979) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1979) [(2017)].

In June 2008, the Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for varicose veins.  In an August 2008 letter, the RO asked the Veteran to identity any pertinent information regarding a current disability, but the Veteran did not respond.  The claim was denied in a September 2008 rating decision.  The Veteran did not appeal the rating decision, and that decision became final.  38 U.S.C.A. § 7105 (c) (1991) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008) [(2017)].

Thereafter, VA received the Veteran's current claim for service connection for varicose veins in the right lower extremity on February 10, 2010, and it was continuously adjudicated until it was granted in a June 2012 rating decision.  The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for varicose veins that was received after the final September 2008 denial, but prior to the February 2010 informal claim.

The Veteran did not timely appeal the May 1980 rating decision denying his service connection claim for varicose veins in the right leg or timely appeal the September 2008 rating decision declining to reopen the previously denied claim for varicose veins in the right leg. Moreover, the Veteran did not file a subsequent petition to reopen the claim for varicose veins in right leg until February 10, 2010.  As such, February 10, 2010 is the earliest possible effective date he can receive for the eventual grant of service connection for varicose veins in the right lower extremity.  See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date).

For these reasons and bases, the Board finds that the preponderance of the evidence is against the claims for effective dates earlier than February 10, 2010, for the award of service connection for varicose veins in the right lower extremity.  As the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.   





ORDER

Entitlement to an effective date prior to February 10, 2010 for award of service connection for varicose veins in the right lower extremity, to include consideration of CUE in the May 1980 rating decision, is denied. 




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s