Vet.App. No. 19-8685 in the UNITED STATES COURT OF

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Vet.App. No. 19-8685

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

ANTHONY M. REBICH,

Appellant,

ROBERT L. WILKIE, Secretary of Veterans Affairs,

Appellee.

ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS

BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS

WILLIAM A. HUDSON JR. Acting General Counsel

MARY ANN FLYNN Chief Counsel

STUART J. ANDERSON Acting Deputy Chief Counsel

LILIAN LEIFERT Appellate Attorney U.S. Department of Veterans Affairs Office of General Counsel 810 Vermont Avenue, NW (027F) Washington, DC 20420 (202) 632-4664

Attorneys for Appellee

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii

ISSUE PRESENTED ...... 1

STATEMENT OF CASE ...... 2

I. Jurisdictional Statement ...... 2

II. Nature of the Case ...... 2

III. Statement of Facts and Procedural History ...... 2

SUMMARY OF THE ARGUMENT ...... 10

ARGUMENT ...... 11

I. Applicable Law ...... 11

II. The Board Provided Adequate Statements of Reasons or Bases When Finding that Appellant Did Not Submit a Claim for Service Connection for Chloracne prior to August 22, 2011 and Appellant has not shown clear error with the Board’s decision...... 13

CONCLUSION ...... 24

TABLE OF AUTHORITIES

Cases Anderson v. Bessemer City, 470 U.S. 564 (1985) ...... 12 Brannon v. West, 12 Vet. App. 32 (1998) ...... 11 Brokowski v. Shinseki, 23 Vet. App. 79 (2009) ...... 11, 12 Caluza v. Brown, 7 Vet. App. 498 (1995) ...... 12 Criswell v. Nicholson, 20 Vet. App. 501 (2006) ...... 11 DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) ...... 14 Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) ...... 23 Dolan v. Brown, 9 Vet. App. 358 (1996) ...... 14, 16 Evans v. West, 12 Vet. App. 22 (1998) ...... 19 Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ...... 11, 13 Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) ...... 16 Hilkert v. West, 12 Vet. App. 145 (1999) ...... 13 Hodges v. West, 13 Vet. App. 287 (2000) ...... 23 Marsh v. Nicholson, 19 Vet. App. 381 (2005) ...... 17 Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004) ...... 11 Pederson v. McDonald, 27 Vet. App. 276 (2015) ...... passim Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) ...... 12 Russell v. Principi, 3 Vet. App. 310 (1992) ...... 14, 15 Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696 (2009) ...... 17 Stallworth v. Nicholson, 20 Vet. App. 482 (2006) ...... 14 Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004) ...... 12 Willsey v. Peake, 535 F.3d 1368 (Fed. Cir. 2008) ...... 14

Statues 38 U.S.C. § 5109A ...... 14 38 U.S.C. § 5110(a) ...... 11, 17, 20 38 U.S.C. § 7104(d)(1) ...... 12 38 U.S.C. § 7105(c) ...... 17 38 U.S.C. § 7252(a) ...... 2

Regulations 38 C.F.R. § 3.400 (2012) ...... 21 38 C.F.R. § 3.155 (2012) ...... 11, 20, 23 38 C.F.R. § 3.309(e) (2020) ...... 22 38 C.F.R. § 20.1403 (2012) ...... 14

Record Before the Agency R. at 1-14 (November 2019 Board Decision) ...... passim R. at 1088-90 (July 2016 VA Form 9) ...... 9 R. at 1118-52 (May 2016 Statement of the Case) ...... 9

ii R. at 1453-54 (April 2016 Notice of Disagreement) ...... 9 R. at 1490-91 (March 2016 Rating Decision) ...... 9, 18 R. at 1851 (April 2014 Private Physician Letter) ...... 9 R. at 1886-1900 (July 2015 Board Decision) ...... 9, 23 R. at 2378-2435 (Service Treatment Records) ...... 3 R. at 2672-73 (June 2013 VA Form 9) ...... 9 R. at 2794-2815 (April 2013 Statement of the Case) ...... 9 R. at 2822-40 (March 2013 VA Examination) ...... 9 R. at 3054-55 (March 2012 Private Treatment Record) ...... 8 R. at 3216-30 (March 2012 VA Examination) ...... 8 R. at 3319-21 (December 2011 VA Treatment Record) ...... 8 R. at 3324-32 (September 2011 VA Examination) ...... 7 R. at 3333-35 (August 2011 VA Treatment Record) ...... 7 R. at 3540 (November 2011 Notice of Disagreement) ...... 8 R. at 3595-3600 (October 2011 Rating Decision) ...... 8 R. at 3632 (August 2011 Claim) ...... 7, 18 R. at 3634 (August 2011 Claim) ...... 7 R. at 3681-84 (March 2011 Rating Decision Notification) ...... 7 R. at 3690-94 (March 2011 Rating Decision) ...... 7, 18, 19 R. at 3695-3702 (January 2011 VA Examination) ...... 6, 7, 18 R. at 3703 (January 2011 Deferred Rating Decision) ...... 6 R. at 3710-18 (November 2010 VA Examination) ...... 6, 18 R. at 3728-29 (October 2010 Claim) ...... 6, 18, 23 R. at 3789-90 (March 2010 Representative Letter) ...... 5 R. at 3805-08 (February 2010 VA 21-22a Form) ...... 5, 12 R. at 3815-3834 (Service Treatment Records) ...... 3 R. at 4095-96 (January 2005 VA Addendum Opinion) ...... 5, 18 R. at 4111-14 (March 2005 Rating Decision Notification) ...... 5 R. at 4117-22 (March 2005 Rating Decision) ...... 18, 19 R. at 4130-31 (August 2004 VA Treatment Record) ...... 4 R. at 4146 (February 2004 Private Treatment Record) ...... 4 R. at 4199 (September 2004 Statement in Support of Claim) ...... 4, 18, 23 R. at 4320-22 (November 1975 Rating Decision) ...... 4, 18, 19 R. at 4323-26 (October 1975 VA Examination) ...... 4, 18 R. at 4383 (November 1974 Appellant Statement) ...... 4, 17, 23 R. at 4410 (June 1970 Rating Decision) ...... passim R. at 4462-65 (February 1970 VA Examination) ...... 3, 15, 16 R. at 4467 (DD 214) ...... 2 R. at 4473-76 (January 1970 Claim) ...... 3

iii IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

ANTHONY M. REBICH, ) ) Appellant, ) ) v. ) Vet.App. No. 19-8685 ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs, ) ) Appellee. )

ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS

BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS

ISSUE PRESENTED

Whether the Court should affirm the part of the November 6, 2019, decision of the Board of Veterans’ Appeals (Board) that denied entitlement an effective date earlier than August 22, 2011, for the grant of service connection for chloracne?

STATEMENT OF CASE

I. Jurisdictional Statement

The Court has jurisdiction over this appeal pursuant to 38 U.S.C. § 7252(a), which grants the United States Court of Appeals for Veterans Claims exclusive jurisdiction to review final Board decisions.

II. Nature of the Case

Appellant, Anthony M. Rebich, appeals the part of the November 6, 2019,

Board decision that denied entitlement an effective date earlier than August 22,

2011, for the grant of service connection for chloracne. [Record Before the Agency

(R.) at 5 (1-14)].

The parties respectfully request the Court not disturb the part of the Board decision awarding an effective date of August 22, 2011, for the grant of service connection for chloracne. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007)

(“The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority.” (citing 38 U.S.C. § 7261(a)(4)).

Appellant has not challenged the part of the Board’s decision denying entitlement to a rating in excess of 30% for chloracne and the claim is therefore abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc)

(dismissing appeal as to issues abandoned by a represented appellant).

III. Statement of Facts and Procedural History

Appellant served on active duty from December 1966 to December 1969 with service in the Republic of Vietnam. [R. at 4467].

2 Service treatment records in 1968 and 1969 reflect numerous complaints and treatments for skin problems, to include cysts, rashes, and fungus. [R. at

2380, 2384, 2396, 2402, 2412, 2433 (2378-2435)], [R. at 3825 (3815-3834)]. In

January 1970, Appellant filed a claim for service connection for “jungle rot–fungus” and a back condition. [R. at 4474 (4473-76)].

Appellant underwent a Department of Veterans Affairs (VA) examination in

February 1970, during which the examiner noted “a small patch of tiny red papules grouped together” on the back of the left hand and a “large erythematous patch extending across the [right] wrist and down the ulna” with “several deep fissures through the center” and “groups of vesicles extending into the adjacent normal appearing skin” at the border. [R. at 4462 (4462-65)]. The examiner tested a patch of skin and found that there was no fungus. Id. The examiner also noted that “both palms were hyperhidrotic and there were a few scattered abrasions over his knuckles along with erythematous macules.” [R. at 4462, 4465]. The examiner diagnosed chronic dyshidrosis (dishydrosiform dermatitis) and noted that the condition tended to be recurrent and chronic and that it “flare[d] when exposed to primary irritants or when the person is under nervous tension.” [R. at 4465].

In June 1970, the Regional Office (RO) awarded service connection for chronic dyshidrosis (dyshidrosiform dermatitis) rated at 10% from

December 19, 1969, the day after Appellant separated from service. [R. at 4410].

The RO based its decision on in-service treatments for neurodermatitis in

June 1966, numerous notations for skin treatments for cysts and contact dermatitis

3 throughout service, and the notation of skin fungus at the time of separation. Id.

Appellant did not appeal the claim and it became final.

In November 1974, Appellant submitted a letter requesting an appointment to have his “hand checked for a skin condition” and also requesting to have his

“back, legs, neck [and] ears checked.” [R. at 4383].

Appellant underwent a VA examination in October 1975 during which the examiner noted a few “dry scaling [ineligible] over palm [right] hand.” [R. at 4324

(4323-26)]. The examiner diagnosed chronic dyshidrosis (dyshidrosiform dermatitis), chronic, in remission at this time.” [R. at 4326]. In November 1975, the RO continued Appellant’s 10% rating for his skin disability. [R. at 4320-22].

Private treatment records from February 2004 reflect a small facial cyst.

[R. at 4146]. VA treatment records in August 2004 document that Appellant went to the dermatology department at the Mayo Clinic but “they really did not come up with a specific diagnosis” and instead prescribed several creams and medications.

[R. at 4130 (4130-31)]. The VA physician noted that Appellant had intermittent chronic relapsing course of “some pustules/dermatitis on his face, hands, and arms,” and diagnosed dermatitis of unclear etiology. [R. at 4130-31].

In September 2004, Appellant submitted a Statement in Support of Claim stating that he was “currently rated s/c for skin condition. I feel my condition has worsened and I wish to request an increase in rating.” [R. at 4199]. He also requested to reopen his claim for service connection for hearing loss, tinnitus, and vertigo. Id. He did not indicate that he wished to apply for service connection for

4 another skin disorder or express a belief that his current service-connected skin disorder was mischaracterized. Id.

In January 2005, he underwent a VA examination during which the examiner noted that he “started having burning, pruritic, papules” that would “form a secretion and pop and break” while in Vietnam, and that he had them almost continuously now. [R. at 4095 (4095-96)]. The examiner noted that Appellant had seen several dermatologists and most recently at the “Mayo Clinic where he had a skin biopsy of the lesion on his nose” and he was given a six-month course of treatment that did not help. Id. During the examination, he noted “tiny papule forming on the periphery of the right ear, on the base of the neck on the right side and one over the left clavicle. Skin on the hands [was] slightly dry and thickened but there [was] no fissuring or exfoliant at present.” Id. There was “no acne, chloracne or old, healed acne.” [R. at 4096]. The examiner’s impression was “skin disorder previously diagnosed as dyshidrotic eczema dating back to his military service in Viet Nam.” Id. In March 2005, the RO increased Appellant’s chronic dyshidrotic eczema to 30%, effective August 16, 2004. [R. at 4111-14] (March

2005 notification letter), [4117-22] (March 2005 rating decision). Appellant did not appeal the decision and it became final.

In February 2010, Appellant’s current counsel filed a VA Form 21-22a,

Appointment of Individual as Claimant’s Representative, [R. at 3805-08], and in

March 2010 he informed the RO that he would be representing Appellant in any claims before the VA, [R. at 3789-90]. In October 2010, Appellant filed for

5 “increase in eval of service-connected chronic dyshidrotic eczema.” [R. at 3728-

29]. He did not express any disagreement with the characterization of his skin disability or file a claim for service connection for a separate skin disability. Id.

Appellant underwent a VA examination in November 2010, during which

Appellant reported that his skin disability progressively worsened and that it was now present consistently. [R. at 3711 (3710-18)]. The examiner noted several

“erythemic, papular lesions to the face-cheeks, forehead, and in beard, also to scalp;” a “erythemic, excoriated lesion [at the] base of posterior neck” with no drainage, black heads, or white heads; “multiple erythemic macular, papular lesions central anterior mid chest;” “[three] small papulars lesions to [right] hand;” left and right upper extremity with “erythemic, well demarked rash to extensor surface forearms;” a “papular lesion with 1 mm pustular head [right] posterior thigh;” and six “excoriated flat lesion [left] mid tibia” with no drainage.” [R. at 3713].

The examiner diagnosed chronic dyshidrotic eczema. [R. at 3714].

In January 2011, the RO found the November 2010 VA examination insufficient for rating purposes and requested a new examination. [R. at 3703].

Appellant underwent another examination that same month. [R. at 3695-3702].

The examiner listed Appellant’s medication, [R. at 3697], and provided the percent affected of exposed areas and whether there was scarring or disfigurement, [R. at

3698-99]. The examiner also noted that Appellant had a dermatology consultation in November 2010 for “chronic recurring dermatitis not responding to topical

6 steroids.” [R. at 3700]. That physician diagnosed folliculitis on Appellant’s face, neck, scalp, and groin; and pruritis. [R. at 3701].

In March 2011, the RO awarded a 60% disability rating for Appellant’s service-connected chronic dyshidrotic eczema from October 27, 2010. [R. at

3681-84] (March 2011 notification letter), [R. at 3690-94] (March 2011 rating decision).

VA treatment records in August 2011 document continued complaints for skin rash. [R. at 3334 (3333-35)]. The VA physician noted mildly inflamed papules with excoriation from scratching in his beard, forearm, and trunk. [R. at 3335]. He assessed “folliculitis–chloracne?” Id. Later that month, Appellant filed for service connection for chloracne, [R. at 3634], stating that since his return from Vietnam he had experienced “substantial skin disorders and recently was affirmed with more than 60% disability chloracne,” [R. at 3632].

Appellant underwent a VA examination in September 2011 that diagnosed dermatitis or eczema since August 2004, eczema since 1974-1975, and folliculitis since 2008. [R. at 3324-25 (3324-32)]. The examiner noted that Appellant’s condition in-service “looked like acne on the face in the beard area and along the palmar surface of the 5th metacarpals” and that over the years it spread to the forehead, back of the head, scalp, arms and shoulder, and the legs, and that it now

“look[ed] like acne with whiteheads that pop and some clear oozing, crusting and then itching.” [R. at 3325]. The examiner found that he did not have acne or chloracne. [R. at 3330].

7 In October 2011, the RO denied service connection for chloracne. [R. at

3595-3600]. In November 2011, Appellant filed a Notice of Disagreement (NOD).

[R. at 3540].

VA treatment records in December 2011 document continued complaints of irritation from skin rash with papules/pustules with itching and some periodical black heads. [R. at 3319 (3319-21)]. The VA physician diagnosed dermatitis and noted that he “did compare his physical findings to photos of chloracne in visual diagnosis and his skin findings are similar to those in the picture and would be difficult to distinguish from eczema based upon [his] exam.” [R. at 3320].

In March 2012, Appellant underwent another VA examination documenting a diagnosis of dermatitis or eczema since 1970 and folliculitis since 2010. [R. at

3218 (3216-30)]. The examiner reviewed Appellant’s treatment record and noted that he was not a dermatologist, but he was board certified in internal medicine and infectious disease. [R. at 3229]. He noted that Appellant’s primary care physician thought he may have chloracne but that the dermatologist diagnosed him with chronic prurigo, and that it was his opinion that it was at least as likely as not that Appellant’s skin condition was best described as eczema. Id.

That same day, Appellant went to a private medical provider that assessed dermatitis but noted that he appeared “to have two different processes going on,” that included “some cystic-type lesions as well as possible eczema.” [R. at 3055

(3054-55)].

8 Appellant underwent another VA examination in March 2013, and the examiner carefully reviewed his medical record but opined that there was no evidence of acneiform skin disorder because, despite “numerous consultations and dermatologic evaluations, [Appellant had] not been diagnosed with chloracne or another acneiform skin disorder.” [R. at 2837 (2822-40)]. Instead, the examiner found that Appellant’s diagnosis was consistent with chronic and recurring folliculitis and dyshidrotic eczema. Id.

In April 2013, the RO issued a statement of the case (SOC) continuing its denial of service connection for chloracne, [R. at 2794-2815], and Appellant perfected his appeal to the Board in June 2013, [R. at 2672-73].

In April 2014, Appellant submitted a letter from a private health practitioner noting that Appellant first developed acne after exposure to Agent Orange in

May 1968 and that he had continued to struggle with acne through the years.

[R. at 1851].

In July 2015, the Board granted service connection for chloracne. [R. at

1886-1900]. In March 2016, the RO implemented the Board’s award of service connection for chloracne and rated it at 30% disabling with an effective date of

April 8, 2014. [R. at 1490-91]. In April 2016, Appellant filed an NOD as to the effective date and requested an effective date from January 1970. [R. at 1453-

54]. In May 2016, the RO issued an SOC, [R. at 1118-52], and in July 2016

Appellant perfected his appeal to the Board, [R. at 1088-90].

9 In its November 2019 decision, the Board awarded an effective date of

August 22, 2011, for the grant of service connection for chloracne. [R. at 1-14].

First, the Board noted that Appellant’s claim was not filed within a year after service, [R. at 6], but that he first filed for chloracne in August 2011, [R. at 8]. The

Board noted that he had previously “filed a claim for ‘jungle rot’ in 1969, which resulted in a grant of service connection for chronic dyshidrotic eczema.” [R. at 8].

The Board noted that at “no point prior to August 22, 2011 did [Appellant] challenge the characterization of that skin disability or file a claim for a separate skin disability.” Id. Therefore, the Board found that “an effective date prior to August

22, 2011 for chloracne [was] not warranted.” However, the Board granted an effective date from August 22, 2011, because it found that the “medical evidence of record indicate[d] that [Appellant] had manifestations of chloracne throughout the period on appeal,” and that the record did not indicate that Appellant’s

“symptoms were substantially different at the time of his diagnosis with chloracne.”

Id.

This appeal followed.

SUMMARY OF THE ARGUMENT

The Court should affirm the November 6, 2019, Board decision that denied an effective date earlier than August 22, 2011, because the Board provided adequate statements of reasons or bases and Appellant failed to show error in the

Board’s finding that Appellant did not submit a claim for service connection for chloracne prior to August 22, 2011.

10 ARGUMENT

I. Applicable Law

The effective date of an award of disability compensation is set in accordance with the facts found but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110(a). The Board must review all communications in the record that may be interpreted as formal or informal claims and consider whether, in the context of the record, they reasonably raise a claim for benefits. Brannon v. West, 12 Vet.App. 32, 35 (1998). Whether formal or informal, a claim must be reduced to a written communication and must both express an intent to apply for benefits and identify the benefits sought.

38 C.F.R. § 3.155 (2012) (recognizing an informal claim for benefits as any

“communication or action, indicating an intent to apply for one or more benefits”).

The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009).

Whether a written communication raises an informal claim for benefits is essentially a factual inquiry and is, therefore, subject to review under the clearly erroneous standard. See Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006);

Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2005). Under this standard of review, the findings of the Board must be affirmed so long as there is plausible support for them in the record. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).

“Where there are two permissible views of the evidence, the factfinder’s choice

11 between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

Appellant’s counsel has represented him in all proceedings before the VA as of February 22, 2010. [R. at 3805-07]. Developing a claim to its optimum requires that the Secretary give a sympathetic reading to a pro se veteran’s filings by “determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for [a particular benefit].” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.

Cir. 2001); see also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

However, the “sympathetic reading” requirement only requires the Board to consider claims “reasonably” raised by the evidence. Brokowski, 23 Vet.App. at

88. “VA is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professionals or by competent lay evidence at the time that a claimant files a claim or during the claim's development.” Id.

A Board decision must be supported by an adequate statement of reasons or bases that explains the basis of all material findings and conclusions. 38 U.S.C.

§ 7104(d)(1). This requires the Board to analyze the probative value of the evidence, account for that which it finds persuasive or unpersuasive, and explain why it rejected evidence materially favorable to the claimant. Caluza v. Brown, 7

Vet.App. 498, 506 (1995). The Board’s statement of reasons or bases must simply

12 be sufficient to enable the claimant to understand the basis of its decision and to permit judicial review of the same. Gilbert, 1 Vet.App. at 57.

The Court should affirm the November 6, 2019, decision because the Board provided adequate statements of reasons or bases in its denial for entitlement to an effective date earlier than August 22, 2011, for the grant of service connection for chloracne, and Appellant has not demonstrated that the Board’s denial was clearly erroneous and that there is only one permissible view of the evidence.

Appellant does not argue that he submitted a claim for service connection for chloracne prior to August 22, 2011. Instead, Appellant’s arguments rest on his assertions that his January 1970 claim for service connection for a skin disability

(claimed as “jungle rot”) remained pending because of VA’s failure to fully adjudicate the claim in the June 1970 rating decision, VA’s failure to assist him in developing his January 1970 claim for service connection, and evidence that his symptoms of chloracne manifested prior to August 22, 2011.

First, Appellant has not shown that the June 1970 rating decision failed to fully adjudicate his January 1970 claim for service connection for “jungle rot” or for a skin disability such that it remained pending. See Hilkert v. West, 12 Vet.App.

145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal). Where an original claim remains pending or

13 unadjudicated, “the appropriate procedure for a claimant to press a claim . . . is to pursue a resolution of the original claim.” See DiCarlo v. Nicholson, 20 Vet.App.

52, 56 (2006). However, when a claim is denied and the claimant fails to file a timely appeal, the decision becomes final. Dolan v. Brown, 9 Vet.App. 358, 361

(1996); DiCarlo, 20 Vet.App. at 57 (recognizing that “the conclusion that a prior decision is final is not a conclusion that the prior decision is correct”). A prior final decision may not be reversed or revised in the absence of clear and unmistakable error (CUE). See 38 U.S.C. § 5109A. CUE is “a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” 38 C.F.R. § 20.1403. In order to establish

CUE, an appellant must show that (1) either the facts known at the time of the decision being attacked were not before the adjudicator or that the law then in effect was incorrectly applied, (2) an error occurred based on the record that existed at the time, and (3) had the error not been made, the outcome of the decision would have been “manifestly different.” Stallworth v. Nicholson, 20

Vet.App. 482, 487 (2006). See also Willsey v. Peake, 535 F.3d 1368 (Fed. Cir.

2008). The standard is demanding, and the alleged error must be “undebatable” and not merely “a disagreement with how the facts were weighed or evaluated.”

Russell v. Principi, 3 Vet.App. 310, 313-14 (1992).

Appellant contends that the June 1970 rating decision failed to fully adjudicate his January 1970 claim for service connection for a skin disability

14 because it did not address his STRs and the in-service evidence of treatment for cysts and lesions. Appellant Brief (App. Br.) at 15 (1-24). However, the June 1970 rating decision specifically considered his in-service treatments for neurodermatitis, cysts, contact dermatitis, and the notation of jungle rot at the time of separation when awarding service connection. [R. at 4410]. The RO also noted the February 1970 VA examiner’s diagnosis of chronic dishydrosis, the findings of the physical examination, and that there were no fungi noted during the examination. Id.; see [R. at 4462-65]. Therefore, Appellant’s argument that the

RO failed to consider his STRs is baseless. Further, failure by the RO to consider evidence before it might be appropriate as an allegation of CUE – which was not made here and so not before the Board or Court – but is not a basis to find that a final rating decision is not final.

In addition, Appellant’s argument that the June 1970 rating decision only focused on eczema because it was “the only rateable (sic) skin condition at the time” is disingenuous. See App. Br. at 15. The schedule for disability rating prior to September 15, 1975, provided diagnostic criteria (DC) for the following ratable skin conditions: scars (DCs 7800, 7801, 7802, 7803, 7804, and 7805); eczema

(DC 7805); Leishmaniasis, americana (mucocitaneous, espundia) (DC 7807);

Leishmanuasis, old world (cutaneous, oriental sore) (DC 7808); Lupus erythematosus, discoid (DC 7809); Pinta (DC 7810); tuberculosis luposa (lupus vulgaris), active or inactive (DC 7811); verruga peruana (DC 7812); dermatophytosis (DC 7813); tinea barbae (DC 7814); pemphigus (DC 7815);

15 psoriasis (DC 7816); dermatitis exfoliative (DC 7817); new growths, malignant skin

(DC 7818); and new growth, benign skin (DC 7819). 29 FR 6718 (May 22, 1964).

The RO noted the February 1970 VA examiner’s findings during Appellant’s physical examination and the diagnosis of chronic dyshidrosis (dishydrosiform dermatitis), and awarded service connection for a skin disability by analogy under

DC 7813 for dermatophytosis with a 10% disability rating from the day after his separation from service. [R. at 4410]; see also [R. at 4462-65]. Therefore,

Appellant’s argument that the RO only considered eczema as a basis for service connection because there were no other ratable conditions in the schedule for disability rating is without merit. Further, failure by the RO to consider a disability not then subject of a separate DC might be appropriate as an allegation of CUE – which was not made here and so not before the Board or Court – but is not a basis to find that a final rating decision is not final.

The June 1970 rating decision was a full grant of the benefits sought, mainly service connection for a skin disability claimed as “jungle rot,” and there is no evidence, either in the record or within Appellant’s brief, that Appellant appealed the RO’s determination within one year of the date of the notification of the decision, either as to the characterization of his disability or as to the assigned rating. See Dolan v. Brown, 9 Vet.App. 358, 361 (1996) (recognizing that a decision denying a claim becomes final where the claimant fails to perfect a timely appeal); see also Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As such, Appellant has not met his burden to demonstrate that his January 1970 claim

16 remained pending and the Court should affirm the Board’s November 6, 2019, decision denying an effective date earlier than August 22, 2011. See Shinseki v.

Sanders, 556 U.S. 396, 409, 129 S.Ct. 1696, 1706 (2009) (holding that the appellant bears the burden of demonstrating prejudicial error).

Second, to the extent that Appellant argues that VA failed to “fairly assess”

Appellant’s skin disability or “abandoned its duty to assist” in the development of his claim for service connection, this argument has no bearing on Appellant’s claim for an earlier effective date. App. Br. at 16-20. The effective date of an award of benefits is generally the date on which the claim that resulted in the award was filed. 38 U.S.C. § 5110(a). Therefore, the pertinent question here is whether

Appellant submitted a formal or informal written communication that can be construed as a claim for service connection for chloracne or a skin disability other than chronic dyshidrotic prior to August 22, 2011.

As explained above, the June 1970 rating decision was a full grant of the benefits sought and fully adjudicated Appellant’s January 1970 claim for service connection for a skin disability (claimed as “jungle rot”). [R. at 4410]. There is no evidence in the record that Appellant filed an NOD, submitted additional evidence, or otherwise appealed the June 1970 rating decision within one year from the date of notification of the rating decision, and therefore the claim became final. 38

U.S.C. § 7105(c); Marsh v. Nicholson, 19 Vet.App. 381, 384 (2005). The evidence reflects that, following the June 1970 rating decision, Appellant filed several claims for increased rating for his service-connected skin condition. See [R. at 4383]

17 (November 1974 statement requesting an appointment for his skin condition), [R. at 4199] (September 2004 statement requesting “an increase in rating” for his skin condition), [R. at 3728] (October 2010 VA Form 21-526b requesting and increase in rating for his “chronic dyshidrotic eczema”). For each of these claims, the RO provided VA examinations to assess Appellant’s skin disability. See [R. at 4323-

25] (October 1975 VA examination), [R. at 4095-96] (January 2005 VA examination), [R. at 3710-18] (November 2010 VA examination), [R. at 3696-3702]

(January 2011 VA examination). The RO then fully adjudicated the claims for increased rating and there is no evidence that Appellant appealed those claims.

See [R. at 4320-22] (November 1975 rating decision); [R. at 4117-22] (March 2005 rating decision), [R. at 3690-94] (March 2011 rating decision). Appellant’s statement on August 22, 2011, is the first reference to chloracne in the record and the first evidence of a written statement that can be construed as a claim for service connection for a skin disability other than his service-connected chronic dyshidrotic. [R. at 3632]. While the RO initially awarded service connection for chloracne effective from April 8, 2014, [R. at 1490-91], the Board found that the medical record indicated that Appellant “had manifestations of chloracne throughout the appeal period,” and awarded an effective date from

August 22, 2011, [R. at 8]. However, the Board denied an effective earlier than

August 22, 2011, because although he previously filed for service connection for

“jungle rot,” which was previously granted, at “no point prior to August 22, 2011 did

18 [he] challenge the characterization of that skin disability or file a claim for a separate skin disability.” [R. at 8].

Appellant’s arguments are nothing more than collateral attacks against a final agency decision based on disagreements with the process VA provided. He contends that VA failed to assist him in obtaining VA examinations and that his

STRs were “absent for most of the first decade of [his] sufferance.” App. Br. at 20.

However, as noted above, the June 1970 RO reviewed his STRs and awarded service connection for chronic dyshidrotic in part because of his in-service complaints and treatment for various skin conditions. [R. at 4410]. Further, the

RO fully developed and adjudicated all of Appellant’s claims for increased ratings for his service-connected skin disability. See [R. at 4320-22], [R. at 4117-22], [R. at 3690-94]. Further, Appellant refers to an August 2007 Board decision that was remanded in an April 2009 Joint Motion for Remand for the premise that VA

“became antagonistic” toward him, but it is unclear from his brief how this shows that Appellant was entitled to an effective date earlier than August 22, 2011, for the award of service connection for chloracne since the Board decision in question addressed service connection for hearing loss and tinnitus. See Evans v. West,

12 Vet.App. 22, 31 (1998) (the Court will not consider a “vague assertion” or an

“unsupported contention” of error). Therefore, Appellant has failed to show that

VA failed to fully develop a claim for service connection for a skin disability other than for service-connected chronic dyshidrotic, and the Court should affirm the

19 November 6, 2019, Board decision denying entitlement to an effective date earlier than August 22, 2011.

Third, Appellant argues that the principles of “chronicity and continuity of symptomatology” require that VA award an effective date earlier than

August 22, 2011, for his grant of service connection for chloracne because his chloracne first manifested during service and has been continuous since service.

App. Br. at 21-22. This is a misapplication of the law. The effective date of an award of disability compensation is set in accordance with the facts found but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110(a). Likewise, “the implementing regulation states that the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.” See Ross v. Peake, 21 Vet.App. 528, 530

(2008). (citing to 38 C.F.R. § 3.400). Here, Appellant does not argue that he submitted any written communication, either formal or informal, between

June 1970 and August 22, 2011, that expressed an intent to apply for service connection for a skin disability other than his service-connected chronic dyshidrotic. See 38 C.F.R. § 3.155. Instead, Appellant essentially contents that he is entitled to an earlier effective date because his chloracne manifested prior to

August 22, 2011. App. Br. at 22. However, even if Appellant’s chloracne manifested prior to August 22, 2011, the effective date of the award must be the date of claim as it is the later of the date of claim or the claim of manifestation of

20 the disability. See. 38 C.F.R. § 3.400. As the Board stated in its decision, and as the Secretary explained above, Appellant’s original claim for service connection for a skin disability (claimed as “jungle rot”) was fully adjudicated in June 1970 and became final a year later because Appellant did not appeal the decision. See [R. at

6, 8]. Further, the Board found, and Appellant has not disputed, that at “no point prior to August 22, 2011 did [Appellant] challenge the characterization of [his service-connected] skin disability or file a claim for a separate skin disability.”

[R. at 8]. Therefore, regardless of whether Appellant’s chloracne first manifested on or before August 22, 2011, because Appellant did not submit any formal or informal written statements prior to August 22, 2011, that could be interpreted as an expressed intent to file for a claim for service connection for chloracne or a skin disability other than his service-connected chronic dyshidrotic, the effective date of the award must be the date of claim. See 38 C.F.R. § 3.400(r).

Appellant also stated that he did not disagree with the Board’s finding “that the date of manifestation of chloracne should control.” App. Br. at 21. This is a mischaracterization of the Board’s decision. The Board’s finding that the date that

“entitlement arose is based on manifestations of the disability, not the date of diagnosis” refers to the regulatory scheme of 38 C.F.R. § 3.400(r), which reflects that the assignment of an effective date is either the date of claim or the date entitlement arose, whichever is later. [R. at 7-8]. It does not mean, as Appellant suggests, that the effective date should solely depend on the date of manifestations of a disability regardless of when a veteran has filed his claim for

21 service connection. App. Br. at 21-22. Here, the Board simply found that the date of the claim and the date that entitlement arose were the same and awarded an effective date of August 22, 2011, to reflect this finding. [R. at 6-8]. Therefore,

Appellant failed to show clear error in the Board’s finding that the effective date should not be earlier than August 22, 2011, and the Court should affirm the Board’s

November 6, 2019, decision denying an effective date earlier than

August 22, 2011.

Lastly, Appellant notes that chloracne was added to the list of presumptive disabilities in 1984 and that he is entitled to a date of claim as of the liberalizing law because his chloracne had been constantly present.1 App. Br. at 22.

However, the evidence does not show, and Appellant has not alleged, that he had a pending claim for service connection for chloracne or a skin disability other than his service-connected chronic dyshidrotic at the time of the liberalizing law. As explained above, Appellant’s January 1970 claim for service connection for a skin

1 Under 38 C.F.R. § 3.309(e) (2020), the current presumptive disabilities for veterans exposed to an herbicide agent are AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma).

22 disability was fully adjudicated in June 1970 and became final a year later, [R. at

4410], and the record reflects that, prior to August 22, 2011, all his other claims for a skin condition were for increased ratings of his service-connected skin disability,

[R. at 4383], [R. at 4199], [R. at 3728]. As the Board noted, Appellant “first filed a claim for chloracne in August 22, 2011,” [R. at 8], which the Board granted in

July 2015, [R. at 1886-1900]. Whether Appellant’s chloracne manifested prior to

August 22, 2011, is immaterial because there is no evidence in the VA file, and

Appellant does not dispute, that he did not file a formal or informal written communication requesting a determination of entitlement, or evidencing a belief of entitlement, to a benefit prior to August 22, 2011. See 38 C.F.R. § 3.155.

Therefore, Appellant failed to show clear error in the Board’s finding that the effective date should be earlier than August 22, 2011, and the Court should affirm the Board’s November 6, 2019, decision denying an effective date earlier than

August 22, 2011.

Finally, as Appellant has not raised any other error in the Board’s decision, the Court should hold that he has abandoned any arguments regarding errors that may be in the Board’s decision. See, e.g., Disabled Am. Veterans v. Gober, 234

F.3d 682, 688 n.3 (Fed. Cir. 2000) (stating that the Court would “only address those challenges that were briefed”); Hodges v. West, 13 Vet.App. 287, 290 (2000)

(citing Degmetich v. Brown, 8 Vet.App. 208, 209 (1995)) (issues or claims not argued on appeal are deemed to be abandoned). Therefore, Appellant has failed to show clear error with the Board’s finding that he first filed a claim for service

23 connection for chloracne on August 22, 2011, and the Court should affirm the

Board’s November 6, 2019, denial of an effective date earlier than August 22,

2011, for the grant of service connection for chloracne.

CONCLUSION

Wherefore, for the foregoing reasons, Appellee, Robert L. Wilkie, Secretary of Veterans Affairs, respectfully urges the Court to affirm the Board’s

November 6, 2019, decision that denied entitlement to an effective date earlier than August 22, 2011, for the grant of service connection for chloracne.

Respectfully submitted,

WILLIAM A. HUDSON, JR. Acting General Counsel

MARY ANN FLYNN Chief Counsel

/s/ Stuart J. Anderson STUART J. ANDERSON Acting Deputy Chief Counsel

/s/ Lilian Leifert LILIAN LEIFERT Senior Appellate Attorney U.S. Department of Veterans Affairs Office of General Counsel 810 Vermont Avenue, NW (027F) Washington, DC 20420 (202) 632-4664

Counsel for the Secretary of Veterans Affairs