16-44 483
16-44 483
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty Oct 1943–May 1946 and filed a claim for service connection for a right shoulder disability in May 1946; the RO denied the claim in May 1946 and the decision became final.
- Veteran did not file another claim for the right shoulder until a request to reopen received Aug 30, 2011; service connection was granted effective Aug 30, 2011 in a Jan 2013 rating decision.
- Veteran later argued for an earlier effective date based on (1) newly associated service records (VBMS entries dated Jan 2015 and Feb 2016) under 38 C.F.R. § 3.156(c), and (2) that the May 1946 rating decision contained clear and unmistakable error (CUE).
- The Board found the Jan 2015-scanned records were actually part of the paper file in 1946 and were relied on by the RO; the Feb 2016 records added nothing material beyond what was in the 1946 file.
- The Board concluded the May 1946 decision was reasonable based on the separation exam and contemporaneous records showing no residuals at discharge, and therefore there was no CUE; VA’s notice and duty-to-assist were found satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an effective date earlier than Aug 30, 2011 is warranted under 38 C.F.R. § 3.156(c) based on subsequently associated service records | Jan 2015/Feb 2016 records show in-service shoulder treatment and thus are "new and material" and support earlier effective date | Jan 2015 records were actually in the 1946 file; Feb 2016 records are not new or material because they duplicate what was before the RO in 1946 | Denied — records were in the 1946 file or not material; no earlier effective date under § 3.156(c) |
| Whether the May 1946 rating decision contains clear and unmistakable error (CUE) | The 1946 denial was erroneous; subsequent grant shows outcome was wrong | The correct facts were before the RO in 1946 and the decision was reasonable; subsequent developments cannot establish CUE | Denied — no CUE: (1) correct facts were before the adjudicator, (2) any error is not "undebatable," and (3) review is limited to record/law as of 1946 |
| Whether VA satisfied its duties to notify and assist | Not raised substantively by Veteran or representative | VA met notification and assistance duties; no procedural challenge before the Board | Finding: duties met; no procedural defect requiring relief |
| Whether reopened-claim effective date can be earlier than reopening date absent CUE or new military records | Veteran argues exceptions apply here | Statute/regulations permit earlier effective date only for CUE or material new military records | Held: statutory/regulatory exceptions not met; effective date is Aug 30, 2011 |
Key Cases Cited
- Phillips v. Brown, 10 Vet. App. 25 (explains CUE three-prong test)
- Damrel v. Brown, 6 Vet. App. 242 (CUE principles)
- Russell v. Principi, 3 Vet. App. 310 (CUE standard)
- Oppenheimer v. Derwinski, 1 Vet. App. 370 (CUE is more than misinterpretation of facts)
- Fugo v. Brown, 6 Vet. App. 40 (clarifies CUE rarity and standard)
- Scott v. McDonald, 789 F.3d 1375 (Board not required to raise arguments not asserted by veteran)
- Dickens v. McDonald, 814 F.3d 1359 (applies Scott to duty-to-assist arguments)