Citation Nr: 0300857 Decision Date: 01/15/03 Archive Date: 01/28/03 DOCKET NO. 01-06 954A ) DATE ) ) THE ISSUE Whether the April 1949 decision of the Board of Veterans' Appeals (Board), which denied restoration of service connection for retinitis pigmentosa, should be revised or reversed on the basis of clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The moving party served on active duty from November 1941 to October 1943. This matter comes to the Board as an original action on the motion of the moving party alleging CUE in a Board decision. It is before the undersigned Member of the Board who has been designated to make the final disposition of this motion for VA. Historically, in an April 1949 decision the Board denied restoration of service connection for retinitis pigmentosa (i.e., it determined that an original grant of service connection for retinitis pigmentosa was clearly and unmistakably erroneous). In a July 1961 decision, the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia granted non-service-connected pension benefits based on bilateral retinitis pigmentosa with restricted vision fields. In a May 1982 decision, the RO granted special monthly pension benefits on account of the need for regular aid and attendance by reason of the moving party's blindness. In February 1990, the moving party's representative filed an application to reopen a claim of service connection for retinitis pigmentosa. In a March 1990 rating decision, the RO determined that service connection remained denied on the basis that the Board's decision of April 1949, which held that the moving party's retinitis pigmentosa preexisted service and did not progress at an abnormally high rate during service, was final. In a November 1995 Memorandum, the moving party's representative sought administrative review from the Director of the VA's Compensation and Pension (C & P) Service in regard to service connection for retinitis pigmentosa. In a May 1996 Administrative Decision, the Director of the C & P Service determined that a basis for a difference of opinion as contemplated by 38 C.F.R. § 3.105(b) was found, and that service connection for retinitis pigmentosa should be established on a direct basis effective on November 17, 1994 (under 38 C.F.R. § 3.114(a)(3)). The C & P Director referred to General Counsel Opinion (OGC 82- 90) dated on July 18, 1990, which held that service connection may be granted for diseases of congenital, developmental, or familial origin provided that the evidence as a whole establishes that the condition was incurred in or aggravated during service, and determined that, in this particular case, it was now found that the evidence did not clearly show that the moving party had retinitis pigmentosa at the time he entered service. In a December 1996 decision, the RO granted service connection for advanced retinitis pigmentosa, effective on November 17, 1994 (one year prior to date of the representative's memorandum requesting administrative review of the service connection claim). In a June 1997 rating decision, the RO denied a claim for an effective date prior to November 17, 1994, for the grant of service connection for retinitis pigmentosa. FINDING OF FACT The April 1949 Board decision was undebatably erroneous, and based on the evidence of record and law as then in effect, the correct decision at that time is that service connection for retinitis pigmentosa should be restored. CONCLUSION OF LAW The April 1949 Board decision, denying restoration of service connection for retinitis pigmentosa, contains CUE and is reversed. 38 U.S.C.A. § 24, 701(a) (1943); Veterans Regulation 1(a), Part I, paragraphs I(a), (b), and (d) (1943); Veterans Regulation 1009 (D) (1947); 38 U.S.C.A. § 7111 (West Supp. 2002); 38 C.F.R. §§ 20.1401-1411 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that the United States Court of Appeals for Veterans Claims has held that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. § 5100 et. seq. (West Supp. 2001)) (VCAA) is not applicable to motions for revision of a Board decision on the grounds of CUE. In Livesay v. Principi, 15 Vet. App. 165 (2001), the Court indicated that the VCAA, with its expanded duties, was potentially applicable to a great number of claims, but it found that the VCAA was not applicable to the claimant's allegations of CUE. Nevertheless, in light of the decision hereinbelow, no additional evidence or information is required to substantiate the moving party's CUE motion. Until recently, a claimant was precluded from collaterally attacking a prior final Board decision by alleging CUE in a rating decision that was subsumed in that decision. Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). Effective November 21, 1997, however, the provisions of Pub. L. No. 105-111, 111 Stat. 2271 (codified at 38 U.S.C.A. § 7111 (West Supp. 2002)) permit challenges to decisions of the Board on the grounds of CUE. The final regulations amending the Rules of Practice before the Board were promulgated and became effective on February 12, 1999, providing for procedures to challenge prior Board decisions on the basis of CUE. 64 Fed. Reg. 2134-2141 (1999) (codified at 38 C.F.R. § 20.1400 et. seq. (2002)). A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C.A. §§ 5109A(a), 7111(a) and (c) (West Supp. 2002). It is apparent that Congress, in creating § 7111, intended VA to follow the established case law defining a viable claim of CUE. 64 Fed. Reg. 2134, 2137 (1999); Donovan v. West, 158 F.3d 1377, 1382-83 (Fed. Cir 1998). This case law is found primarily in the following precedent opinions of the United States Court of Appeals for Veterans Claims (Court): Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Crippen v. Brown, 9 Vet. App. 412 (1996); and Berger v. Brown, 10 Vet. App. 166 (1997). CUE is defined as the kind of error, of fact or law, 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; generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). A review for CUE in a prior Board decision must be based on the record and the law as it existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). CUE does not include a change in medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Further, the doctrine of the favorable resolution of reasonable doubt is not applicable in determinations of whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a) (2002). As a threshold matter, a claimant must plead CUE with particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). Factual Background of the Case The moving party served on active duty from November 1941 to October 1943. A careful review of the service medical records shows that, on the November 1941 physical examination for enlistment purposes, there was no eye abnormality and central visual acuity was 20/20, bilaterally. In September 1943, during service, the moving party was hospitalized with complaints that he began to notice burning in his eyes and some trouble with his vision about 20 months previously during basic training. He stated that he had seemed to do okay but that later on he was again bothered and received further treatment for his eyes. He complained that, for the past seven months, his symptoms seemed to have worsened, with considerable burning and progressive inability to see at night. He reported that he had had some watery-like discharge but that otherwise his vision seemed to have been okay. While in the hospital, an eye consult was sought, and an examination showed central congenital nuclear stippling in each lens with early posterior capsular opacities and extensive pigmentation in the fundus, bilaterally. The diagnosis was that of retinitis, unclassified, chronic, severe (pigmentosa). The eye consult also indicated that the cause of the eye condition was congenital, that the peripheral fields of vision were contracted in both eyes, that central visual acuity was 20/20, that in terms of a line of duty determination the condition did not exist prior to service, and that the veteran needed to be worked up for discharge from service. A Certificate of Disability for Discharge (CDD), dated in October 1943, indicates that the veteran was discharged on account of retinitis, unclassified, chronic, severe (pigmentosa), with a visual acuity of 20/20, bilaterally (it was not shown whether this was corrected or uncorrected). Included in the Certificate was a report of a Board of Medical Officers who determined that the moving party was unfit for service due to his eye disease that incapacitated him on the bases of night blindness, contracted visual fields, and being a progressive disease, and that such condition had not been aggravated by military service. The Certificate further notes that the eye disease was congenital, had existed prior to service and was not incurred in the line of duty. In a December 1943 decision, the RO granted service connection and assigned a 20 percent rating for retinitis pigmentosa, on the basis that the condition was aggravated by service. In a February 1944 decision, the RO confirmed and continued its rating of December 1943. On a July 1944 VA examination, the general appearance of the moving party's eyes were within normal limits. His visual acuity was 20/30 in both eyes (uncorrected) and 20/20 in both eyes (corrected). On examination of the fundi, there was an area of "bone corpuscle shaped areas," dense pigmentary deposit in the periphery of the eyes, and no central scotoma. The diagnosis was that of retinitis pigmentosa, bilateral. In decisions in August 1944 and December 1946, the RO confirmed and continued its rating of December 1943. The VA hospital records dated in June 1948 show that the moving party was admitted due to abdominal pain. A physical examination revealed, among other things, multiple areas of increased pigmentation and obliteration of retinal vessels in both eye. He was discharged after 10 days, and the final diagnoses included that of retinitis, bilateral, chronic, unchanged. In a July 1948 decision, the RO proposed to sever service connection for retinitis pigmentosa, on the basis that the December 1943 RO decision involved CUE. The RO found that the eye disability was of a familial origin and existed prior to service and that there was no aggravation beyond the natural progress of the disease shown. By letter in July 1948, the moving party was notified of the proposal which would result in the discontinuance of his compensation payments. In a September 1948 decision, the RO formally severed service connection for retinitis pigmentosa, on the basis of CUE in the December 1943 RO decision. In a November 1948 statement of appeal, the moving party alleged that the RO committed errors of fact and law in the matter of the severance of service connection for retinitis pigmentosa. He claimed that he had not had any trouble with his eyes prior to service and that, after he had been in the service about 10 months, his eyes began to bother him. He argued that his condition was caused or aggravated by service. In an April 1949 decision, the Board, in a three member panel which consisted of one physician, determined that the original grant of service connection for the condition was clearly and unmistakably erroneous. In so deciding, the Board denied restoration of service connection for retinitis pigmentosa. Specifically, the Board stated the following: The vision recorded on examination to determine the veteran's physical fitness for service was 20/20, bilateral. This record of the visual acuity may not be accepted as reflecting normal eyes and normal visual efficiency at enlistment, in view of the findings in service of the same central visual acuity when fundus examination disclosed extensive pigmentation of the retina and marked peripheral contraction of the visual fields. Retinitis pigmentosa is a constitutional, degenerative eye disease, and based on all the evidence of record, including medical facts and principles, it clearly and unmistakably preexisted enlistment. The symptoms reported during observation for the eye condition in service are not descriptive of any sudden pathological eye development or inflammation in connection with the basic chronic eye disease. Any increase in the visual disturbance which may have occurred during service must, therefore, be attributed to the natural course of the preexisting ocular disease. In its decision, the Board cited to "Public No. 2, 73d Congress, as amended." In August 2001 the moving party's representative filed a motion for revision or reversal of the April 1949 Board decision. The representative argued, among other things, that the Board incorrectly applied the statutory and regulatory provisions extant at the time. The representative stated that the Board failed to cite any VA laws, regulations, medical documents, treatises, or opinions to support its conclusion that the enlistment examination was in error; that other medical conditions noted in service did not aggravate the retinal disease; or that the severe contraction of visual fields in service were due to natural progression. Analysis The question before the Board is whether the April 1949 decision of the Board contained CUE in denying restoration of service connection for retinitis pigmentosa, which had been severed in the September 1948 RO decision. After a careful review of the record, the Board finds that the April 1949 Board decision contains CUE. That is, the Board finds that the Board's determination in 1949 that an original grant of service connection for retinitis pigmentosa was based on CUE does itself contain CUE. The version of the regulation providing for severance of service connection in effect at the time of the 1949 Board decision, Veterans Regulation 1009 (D) (1949), is similar in many respects to the regulation in effect today, 38 C.F.R. § 3.105(d) (2001). Both provide that the Government (i.e., VA) has the burden of proof in showing that the original grant of service connection was clearly and unmistakably erroneous. The 1949 version of Veterans Regulation 1009 (D) states, in relevant part, that: [W]here a change in diagnosis of a service-connected disability is made, the examining physician or physicians, or other proper medical authority, will be required to certify, in light of all accumulated medical evidence, that the prior diagnosis on which service connection was predicated was not correct . . . . If, in light of all the accumulated evidence, it is determined that service connection may not be maintained, it will be severed. The 2001 version of § 3.105(d) likewise states, in relevant part, that: A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians certifies that, in light of all accumulated evidence, the diagnosis on which service connection was predicated was clearly erroneous. Thus, the Board, in its April 1949 decision, was charged with determining, based on all of the accumulated evidence, whether the December 1943 RO decision that granted service connection for retinitis pigmentosa was the product of CUE. Veterans Regulation 1009 (D) (1949). As an initial matter, the Board notes that the regulatory provisions extant in 1943, with respect to establishing service connection for a particular disability, were essentially the same as they are today. Cf. Veterans Regulation 1(a), Part I, paragraphs I(a), (b), and (d) (1943), with 38 C.F.R. §§ 3.303, 3.304(b), 3.306(a) and (b) (2001). That is, in order to establish service connection for a particular disability, there must be evidence that establishes that such disability either began in or was aggravated by service. 38 C.F.R. § 3.303 (2001); Veterans Regulation 1(a), Part I, paragraph I(a) (1943); see also 38 U.S.C.A. § 701(a) (1943). Moreover, the claimants, both in 1943 and today, are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination for acceptance and enrollment into service, unless clear and unmistakable evidence demonstrates that the injury or disease existed prior to service. 38 C.F.R. § 3.304(b) (2001); Veterans Regulation 1(a), Part I, paragraph I(b) (1943); see also 38 U.S.C.A. § 24 (1943). To establish service connection under the law in effect in December 1943, the facts, as shown by the evidence, would have to demonstrate that a particular disease or injury resulting in current disability was incurred during active service, or if preexisting service was aggravated therein. Veterans Regulation 1(a), Part I, paragraph I(a) (1943). In this case, the evidence shows that there was no visual acuity deficiencies or eye abnormalities noted at the time of the enlistment examination. Thus, the moving party's eyes were to be considered in sound condition at induction, and absent clear and unmistakable evidence of a preexisting eye disease he is entitled to the presumption of soundness upon acceptance and enrollment into service. Veterans Regulation 1(a), Part I, paragraph I(b) (1943). Service connection for retinitis pigmentosa was originally established in December 1943 on the basis of aggravation of a preexisting condition during service. Retinitis pigmentosa is generally accepted as being a congenital disorder, and based on this medical principle both the RO in December 1943 and the Board in April 1949 held that retinitis pigmentosa existed prior to service. According to applicable regulations extant in 1943, aggravation of a preexisting disability was to be conceded where such disability underwent an increase in severity during service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. Veterans Regulation 1(a), Part I, paragraph I(d) (1943); cf. Veterans Regulation 1063 (D) and (E) (1949) (providing that aggravation was conceded unless such increase in severity was shown by clear and unmistakable evidence, including medical facts and principles, to have been due to the natural progress of the disease). In its April 1949 decision, the Board determined, in light of all the accumulated evidence, that service connection based on aggravation of the veteran's preexisting retinitis pigmentosa could not be maintained. Specifically, the Board found that the evidence of record pertaining to the manifestations of the veteran's eye condition prior to, during, and subsequent to service, did not show that the basic chronic pathology of the veteran's eye condition increased in severity during service. In this case, there were no eye abnormalities, including visual acuity deficiencies, noted at the time of enlistment in November 1941. Retinitis pigmentosa was first diagnosed during active duty in September 1943. Despite these facts, the Board in 1949 held that the symptoms reported during service were "not descriptive of any sudden pathological eye development or inflammation in connection with the basic chronic eye disease." This statement is clearly and undebatably erroneous, particularly in light of the absence of any objective eye manifestations prior to service. The Board in April 1949 found that the evidence clearly and unmistakably showed that retinitis pigmentosa existed prior to service, citing to the fact that the eye condition is a constitutional disease, and stating that the enlistment examination may not be accepted as showing the true ocular condition. This latter assumption ignores the fact that at enlistment there was no objective medical evidence of any eye abnormalities and as such there was a presumption of soundness at that time. The evidence of record in 1949 clearly showed that not only was the retinitis pigmentosa incurred in service, if the moving party is presumed to be in sound condition upon entry, but also that the underlying pathology of the disease worsened, if such condition is to be considered to have existed prior to service. Therefore, the Board's April 1949 decision, which found CUE in the original grant of service connection for retinitis pigmentosa, and denied restoration of service connection for retinitis pigmentosa, was an improper application of the governing law and regulations in existence at that time. Moreover, on the September 1943 eye consult in service the specialist specifically found that the congenital eye condition did not preexist service, which conflicts with the October 1943 report of Medical Board Officers who summarily and without explanation found that the condition existed prior to service without aggravation therein. It is uncontrovertible that the onset of the manifestations of the congenital retinitis pigmentosa was shown by medical evidence during service. As such, the grant of service connection for retinitis pigmentosa in December 1943 was not clearly and unmistakably erroneous, and VA did not meet its burden of proving otherwise when it severed service connection in September 1948. Thus, as has been discussed hereinabove, the Board finds that the presumption of soundness on enlistment had not been rebutted by clear and unmistakable evidence that the eye condition existed prior to service. For the Board in April 1949 to have decided that retinitis pigmentosa clearly and unmistakably preexisted service without aggravation therein is itself undebatable error. Further, and based on such error, for the Board in April 1949 to have denied restoration of service connection for retinitis pigmentosa, is likewise CUE. If the Board had correctly applied the pertinent laws and regulations in existence in 1949, the decision would have been manifestly different. Based on the evidence of record and the law as then in effect, the April 1949 Board's decision was undebatably erroneous. Instead, the correct decision at that time should have reflected that there was no CUE in the grant of service connection for retinitis pigmentosa in December 1943, thus restoring service connection. In sum, it is found that the statutory or regulatory provisions extant at the time were incorrectly applied by the Board when it determined in April 1949 that an original grant of service connection for retinitis pigmentosa was clearly and unmistakably erroneous, thus denying restoration of service connection for retinitis pigmentosa. Therefore, the motion for reversal of that decision is granted. ORDER As there was CUE in the April 1949 Board decision which denied restoration of service connection for retinitis pigmentosa, the motion for reversal of that decision is granted. STEPHEN L. WILKINS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597B that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? In the section entitled "Appeal to the United States Court of Appeals for Veterans Claims," you are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," you no longer need to have filed a "notice of disagreement ... that led to the decision the Board has just reviewed for CUE ... on or after November 18, 1988" as a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.