Citation Nr: 0329341 Decision Date: 10/28/03 Archive Date: 11/05/03 DOCKET NO. 97-03 834A ) DATE ) ) THE ISSUE Whether an October 1997 decision of the Board of Veterans' Appeals (Board) denying service connection for multiple sclerosis was clearly and unmistakably erroneous. REPRESENTATION Moving party represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty for training from August 1988 to January 1989, and on inactive duty training on September 12, 1993. The issue identified above, whether an October 1997 Board decision in which service connection for multiple sclerosis was denied was clearly and unmistakably erroneous, is raised by the Board on its own motion on behalf of the veteran, following its review of the evidence pursuant to the issue of whether new and material evidence had been submitted to reopen a claim of service connection for multiple sclerosis. While an appeal for the latter issue had been perfected, the Board is of the opinion that the matters raised for Board adjudication are better addressed by consideration of the referenced Board decision under the clear and unmistakable error standard. The question of whether new and material evidence was submitted is subsumed by the Board's consideration of the clear and unmistakable issue, and need not be addressed herein. A claim of entitlement to service connection for multiple sclerosis was initially raised by the veteran by means of a VA Form 21-4138, Statement in Support of Claim, that was received by VA on December 8, 1995. The San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) thereafter denied this claim, as did the Board on appeal therefrom in October 1997. FINDINGS OF FACT 1. The applicable statutory and regulatory provisions existing at the time of the Board's October 1997 decision, whereby service connection for multiple sclerosis was denied, were not correctly applied. 2. Multiple sclerosis was manifested to a compensable degree within seven years following the veteran's separation from active service. CONCLUSIONS OF LAW 1. The Board's October 1997 decision, wherein service connection for multiple sclerosis was denied, contains clear and unmistakable error. 38 C.F.R. § 3.105(a) (2003). 2. Multiple sclerosis is presumed to have been incurred during active service. 38 U.S.C.A. §§ 101, 1101, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent laws and regulations stipulate that previous determinations that are final and binding, including decisions of service connection and decisions rendered by the Board, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (2003). Under 38 C.F.R. § 3.105(a), a prior decision must be reversed or amended where evidence establishes clear and unmistakable error (CUE). For CUE to exist, either the correct facts, as they were known at that time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be "undebatable" and the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. 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. See also 38 C.F.R. § 20.1403(c) (2003), with specific reference to Board decisions. Clear and unmistakable error 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 (1991). The error must be one that would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). To establish clear and unmistakable error, it must be further demonstrated that the claimed error, when called to the attention of later reviewers, compels a different conclusion to which reasonable minds could not differ. See Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994). Such is the situation in the instant case, wherein the Board, in October 1997, denied the veteran's claim of entitlement to service connection for multiple sclerosis. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Service connection may also be granted on a presumptive basis for certain chronic disabilities when that disability is manifested to a compensable degree within a specific period (usually one year) after separation from service, when such service was at least 90 days in duration. 38 C.F.R. §§ 3.307, 3.309 (2003). Multiple sclerosis is identified in the regulations as a disability for which a seven-year presumptive period applies. In the case herein, the veteran's service consisted entirely of either active duty for training or inactive duty training; that is, he did not serve on active duty. The statutory provisions identifying the presumptive periods discussed above, and the disabilities for which such presumptions are made, specifically limit the application of those presumptions to "veterans." 38 U.S.C.A. § 1112 (West 2002). A "veteran" is defined by statute as "a person who served in the active military, naval, or air service." 38 U.S.C.A. § 101(2) (West 2002). However, statutory provisions also stipulate that the term "active military, naval, or air service" includes not only active duty, but also "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. §§ 101(24)(B) and (C) (West 2002). In the case at hand, service connection for a left knee disability was granted by the RO in March 1995, based on service medical records reflecting the incurrence of a left knee injury during inactive duty training on September 12, 1993. In other words, the appellant has established service connection for a disability incurred during a period of inactive duty training, which renders that period, by statute, a period of active service, which renders him a veteran. His status as a veteran allows for consideration of the provisions establishing a seven-year presumptive period for the compensable manifestation of multiple sclerosis. In the Board decision rendered in October 1997, the record clearly established that the veteran was service connected for a left knee disability, incurred during his period of inactive duty training; as indicated above, service connection for this disability had been granted by the RO in March 1995. Under the provisions cited above, which were in effect as of the date of the Board's decision, the claimant could accordingly be considered to be a veteran, with concomitant application of the seven-year presumptive period for the manifestation of multiple sclerosis. The Board, however, expressly rejected application of that presumptive period, specifically finding that "[a]s a matter of law this contention fails because the presumption is only available to individuals who have served on 'active duty' during a period of war or after December 31, 1946. In the instant case, the appellant's military service consisted of active duty for training and inactive duty for training (sic). Consequently, the appellant is not a benefits-eligible claimant for the purposes of entitlement to service connection on a presumptive basis." The Board's rejection of any application by law of the presumptive period was clearly and unmistakably erroneous. As discussed above, the law at the time that decision was rendered without question required the application of that presumptive period; the appellant, by virtue of his service- connected disability, is deemed to be a veteran for the purpose of consideration of the presumptive period for multiple sclerosis. Moreover, application of that presumptive period compels the Board to reach a different conclusion than that rendered in October 1997. The medical evidence of record in October 1997 clearly demonstrates that the veteran had been diagnosed with, and hospitalized for treatment of, multiple sclerosis in 1995, less than seven years following his separation from a period of qualifying service in January 1989. It is noted that this period of service was of such length (August 1988 to January 1989) as to allow for consideration of the presumptive period. Simply stated, in October 1997 the evidence demonstrated that multiple sclerosis had been manifested to a compensable degree within the presumptive seven-year period. It follows that multiple sclerosis, in October 1997, should have been presumed to have been incurred during active service, and that service connection for multiple sclerosis was appropriate. That it was not granted by the Board in October 1997 requires the Board at this time to conclude that the Board's October 1997 decision was clearly and unmistakably erroneous; that decision is reversed, and service connection for multiple sclerosis is granted. The Board notes that a decision of the Board, such as the one rendered herein, that revises a prior Board decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. 38 C.F.R. § 20.1406(a) (2003). That is, service connection for multiple sclerosis is granted at this time as if it had been granted by the Board in October 1997, arising from the claim for service connection for that disorder that was received by VA on December 8, 1995. ORDER An October 1997 Board decision was clearly and unmistakably erroneous, and the decision rendered therein is reversed. Service connection for multiple sclerosis is granted. ____________________________________________ C. P. RUSSELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION ON YOUR MOTION FOR REVIEW FOR CLEAR AND UNMISTAKABLE ERROR The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision on your motion for the Board to review one or more of its final decisions for clear and unmistakable error (CUE). If you are satisfied with the outcome of this decision, you do not need to do anything. However, if you are not satisfied with this decision, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision. None of these things is mutually exclusive -you can do all three at the same time if you wish. However, if you file a Notice of Appeal with the Court and motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. There is no time limit for filing a motion for reconsideration or a motion to vacate with the Board. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision. See 38 C.F.R. 20.1090 --20.1003. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Address your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. VA FORM JUN 2003(R S) 4597b Page 1 Continued How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence submitted by or on behalf of the appellant. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, you should write directly to the Court for information. Upon request, the Court will provide you a state-by-state listing of persons admitted to practice before the Court who are available to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003(R S) 4597b Page 2