Citation Nr: 0611534 Decision Date: 04/21/06 Archive Date: 04/26/06 DOCKET NO. 04-20 537 ) DATE ) ) THE ISSUE Whether a January 1986 decision of the Board of Veterans Appeals (Board) denying service connection for a back disability should be revised or reversed on the basis of clear and unmistakable error (CUE). (Additional issues involving appeals for higher initial evaluations for a postoperative discectomy at L3 - L4 and L5 - S1, polyradiculopathy of the right lower extremity associated with the postoperative discectomy at L3 - L4 and L5 -S1, and a mood disorder associated with the postoperative discectomy at L3-L4 and L5 - S1, and appeals for earlier effective dates for the grants of service connection for each of these disorders will be the subject of a separate remand.) REPRESENTATION Moving party represented by: Darla J. Lilley, Attorney at Law ATTORNEY FOR THE BOARD K. Parakkal, Senior Counsel INTRODUCTION The veteran had active military service from August 1972 to May 1974, followed by Reserve service which involved periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). A period of INACDUTRA from May 1, 1982, to May 2, 1982, is verified. This matter is before the Board for review of a motion filed by the veteran pursuant to 38 U.S.C.A. §§ 5109A and 7111 (West 2002) for revision or reversal, on the basis of CUE, of a January 1986 Board decision which denied service connection for residuals of a back injury claimed as postoperative residuals of a discectomy at L3-L4. The case was before the Board in January 1986 on appeal from a May 1985 rating decision by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA) which found that new and material evidence had not been submitted to reopen the claim for service connection for a back disability following a prior final denial of service connection by the Board in November 1983. FINDINGS OF FACT 1. A November 1983 Board decision denied service connection for residuals of a postoperative discectomy at L3-L4. 2. In January 1986, the Board found that the previously denied claim of service connection for a low back disability had been reopened by submission of new and material evidence but determined that the evidence of record did not establish a new factual basis for granting service connection. 3. Of record before the Board in January 1986 was a March 1985 service department investigation report which determined that the veteran sustained a back injury on May 1, 1982, in the line of duty. 4. Evidence on file at the time of the Board's January 1986 decision undebatably shows that the inservice back injury during INACDUTRA was productive of disability. 5. The January 1986 Board decision involved misapplication of the law or VA regulation to the extent that it did not accept the March 1985 investigation report as binding on VA, and the misapplication of law resulted in an undebatably incorrect decision. CONCLUSION OF LAW The January 1986 Board decision denying service connection for a back disability is clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. § 20.1403 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA) emphasized VA's obligation to notify claimants as to what information or evidence is needed in order to substantiate a claim, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VCAA is not applicable to requests for revision of a final decision based on CUE because that matter involves an inquiry based upon the evidence of record at the time of the decision, not based upon the development of new evidence. Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001); VAOPGCPREC 12-2001 at para. 7 (July 6, 2001) (VA does not have "a duty to develop" a CUE case because "there is nothing further that could be developed"); see also Livesay v. Principi, 14 Vet. App. 324, 326 (2001). Legal Criteria Before November 21, 1997, a claimant was precluded by law from collaterally attacking a prior final Board decision by alleging CUE in either the Board's decision or in a rating decision that was subsumed in that decision. Smith v. Brown, 35 F.3d, 1516 (Fed. Cir. 1994). However, such challenges have been permitted since November 21, 1997, the date of enactment of Pub. L. No. 105-111, 111 Stat. 2271. The statutory authority for the revision of Board decisions on the basis of CUE granted by Public Law No. 105-111 is found in 38 U.S.C.A. §§ 5109A (a) and 7111 (West 2002) which codified, without substantive change, the existing regulation, 38 C.F.R. § 3.105(a), providing for revision of RO decisions on the basis of CUE. Donovan v. West, 158 F.3d 1377 (Fed. Cir. 1998); Dittrich v. West, 163 F.3d 1349, 1352 (Fed Cir. 1998). The Board has original jurisdiction to determine whether CUE exists in a prior final Board decision. Such review may be initiated by the Board on its own motion or by a party to the decision. 38 C.F.R. § 20.1400 (2005). Rule 1403 of the Board's Rules of Practice, found at 38 C.F.R. § 20.1403 (2005), defines what does and does not constitute CUE. The regulation provides as follows: (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of 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. (b) Record to be reviewed.--(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made; (2) [Omitted] (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, 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 when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error -- (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error 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. (Authority: 38 U.S.C.A. § 501(a), 7111 (West 2002)). The United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE, stating that "[c]lear 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, 372 (1991). CUE denotes "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992). "It must always be remembered that [CUE] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A finding of CUE "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). When a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based on the same factual basis shall be considered; however, where subsequent to disallowance of a claim, new and material evidence in the form of official reports from the proper service department is secured, the Board may authorize the reopening of the claim and review of the former decision. 38 U.S.C. § 4004(b) (1982). When a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made, and if it is, whether it provides a new factual basis for allowing the claim. An adverse determination as to either question is appealable. 38 C.F.R. § 19.194 (1985). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101(24), 106, 331, 337 (1982). "The term 'active military, naval, or air service' includes active duty, 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 for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24) (1982). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 353 (1982); 38 C.F.R. § 3.306(a) (1985). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. See 38 U.S.C. § 311 (1982); 38 C.F.R. § 3.304(b) (1985). Thus, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. "In line of duty" means an injury or disease incurred in or aggravated during a period of active military, naval or air service unless such injury or disease was the result of the veteran's own willful misconduct. A service department finding that injury, disease or death occurred in line of duty will be binding on the Veterans Administration unless it is patently inconsistent with the requirements of the laws administered by the Veterans Administration. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted, the veteran was: (1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. (2) Confined under a sentence of court- martial involving an unremitted dishonorable discharge. (3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. 38 C.F.R. § 3.1(m) (1985). Factual Background The veteran's service medical records from his period of active duty from August 1972 to May 1974 are negative for complaints or findings related to the back. Army Reserve examination reports, dated in April 1976 and February 1978, reflect that the veteran's spine was normal. An April 1982 quadrennial examination report reflects that the spine was normal on evaluation. In addition, it was specifically noted that, with respect to the spine, he was not in pain; his reflexes were good; and he did not have sensory motor loss. On an associated medical history form, it was reported that he had a "slipped disc" and degenerative back disease four years earlier that had been treated with traction. Back pain, left leg numbness, and sciatica were noted as having cleared. It was noted he had some back pain during active duty but had recovered. The diagnosis was a questionable herniated nucleus pulposus (HNP) in the past, recovered with traction, with no interference with work or duty presently. Records from the emergency room of the Johnson County Hospital show that the veteran was seen on May 2, 1982, after twisting his right knee during training. Records from the Hendricks County Hospital dated in July 1982 show that the veteran reported a six-year history of low back difficulties. The veteran reported having been followed for low back pain following a 1976 motorcycle accident. It was noted he had experienced an increase in pain in the previous six to 12 months despite conservative therapy. A computerized tomography (CT) scan in July 1982 showed central disc herniation to the right at the level of L3-L4 with impingement on the neural root. The attack that led to the admission had begun the prior Friday and was not associated with any injury. Surgery consisting of laminectomy at L3-L4 on the right with excision of the disc was performed. The final diagnosis was a HNP at L3-L4 on the right. In an August 1982 statement, G. B., M.D., expressed the conclusion that the veteran's back problem was either caused by or exacerbated by military duty. Received in support of the veteran's August 1982 claim for service connection for a back disorder were statements dated in January and February 1983 from four individuals who served with the veteran in May 1982 and who related that the veteran had experienced back pain during a tactical exercise. During an October 1982 VA compensation examination, the veteran reported that he slipped and fell down a hill during maneuvers. The following day, he said, he was brought to the hospital. The diagnoses included an injury to the lower back and a postoperative discectomy at L3-L4 level with residuals of slight narrowing of the L3-L4 disc spaces. At a February 1983 RO hearing, the veteran testified he slipped in the mud and experienced considerable back pain with radiation of pain running down his right leg in an incident in May 1982. The foregoing documents were of record before the Board in November 1983, at which time the Board entered decision denying service connection for residuals of a back injury. The Board found that the evidence did not establish that the veteran's HNP was related to an injury in service. A request to reopen the claim for service connection was received on February 17, 1984. The following evidence was received thereafter. A DA Form 2173, Statement of Medical Examination and Duty Status, dated in May 1982 indicated that the veteran had twisted his knee while on maneuvers on May 2, 1982, during INACDUTRA. A February 1984 Reserve examination report shows that the veteran had undergone disc surgery in July 1982 which had not relieved his symptoms and that further disc surgery was contemplated. The diagnosis was recurrent disc disease at L- 5 with previous surgery at L3-L4 with no relief of symptoms. It was noted he was not qualified for duty. The veteran testified at a July 1984 RO hearing that when he was examined at a private hospital after a fall in May 1982 he complained of back pain but only the right knee was examined. He related that at the Johnson County Hospital he experienced severe pain that extended down to his buttocks and leg. He asserted that he had fully recovered after his 1976 motorcycle accident. At the hearing he submitted statements from nine service comrades which were to the effect that the veteran had complained of back and leg pain after falling. Several of the individuals had seen the veteran fall and stated that he complained of pain. One of the individuals stated he had seen the veteran at the dispensary, where his complaints had included back pain. In a March 1984 statement, a senior medical specialist indicated that she had seen the veteran when he presented for treatment on May 2, 1982. She related that he complained of back and leg injuries. She said that he had just fallen during a military training exercise and was experiencing leg and back pain. It was noted that the veteran's complaints appeared to be legitimate and that he was referred to a physician at Johnson County Memorial Hospital for examination of his back and leg. It was noted that, although he was referred for examination of the back and leg, he was apparently only examined for his injured leg. Additional service department records were received. A formal line of duty investigation was completed in March 1985 wherein it was reported that the veteran had sustained knee and back injuries as a result of falling down an embankment during a period of INACDUTRA (a weekend drill) on May 1, and May 2, 1982. It was reported that at the time of the injury the veteran had been taken to the hospital, where he complained of severe back and knee pain but was treated only for a sprained knee. Several witnesses were reported to have supported the claim. It was reported that the veteran had undergone an examination one month before the injury, in April 1982, and had been cleared for duty, and had later undergone back surgery in August 1982. The back injury was found to have been in line of duty. The veteran underwent a service department Medical Board examination in April 1985. He complained of low back pain, and it was noted that his history dated back to when he injured his back on a training exercise in May 1982. At that time, he was taken to a hospital where he was treated for knee not back problems. It was reported that he returned home still complaining of severe back pain. He said he was seen by his family doctor who put him on bedrest. The pain did not abate and he was hospitalized and placed in traction in June 1982. A myelogram was negative, but CT studies showed a bulge at L-3 and L-4. In July 1982, he underwent a L3-L4 laminectomy and discectomy. He continued to have progressive problems on an intermittent basis and underwent numerous hospitalizations over the next year. In October 1983, the veteran was found to have an L-5- S-2 HNP on a CT scan. He underwent a L-5, S-1 laminectomy and discectomy on the right side. He continued to have intermittent problems since that time especially with muscle spasm and leg pain. He had been unable to do his military duty in the usual manner. Following an examination, it was determined that he was unable to perform military duty due to low back pain. The veteran was discharged from the Reserves in August 1985. Analysis The law in effect at the time of the Board's January 1986 decision, like the law in effect now, provided that determinations by the Board of Veterans Appeals were final as to the evidence then of record but that a previously disallowed claim could be reopened by submission of new and material evidence. Service connection could then be awarded if the evidence of record was deemed to provide a new factual basis for an allowance of the reopened claim. In the present case, the stated basis for the Board's January 1986 denial of service connection was that no new factual basis for an award of service connection had been found. The decision did not articulate a finding that new and material evidence had been presented, but such a finding is implicit in the Board's repeated characterization of the claim as a "reopened" claim, to include in its Conclusion of Law. Consequently, a finding of CUE in the January 1986 decision would result in an allowance of service connection rather than a mere reopening of the claim previously denied by the Board in 1983. To establish CUE in the Board's January 1986 decision, it must be shown that the correct facts, as they were known at the time, were not before the adjudicators or that the law in effect at that time was incorrectly applied. The error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome of the decision at the time it was made. Russell, 3 Vet. App. at 313; Fugo, 6 Vet. App. at 43. The Board indicated in its January 1986 decision that it was unable to conclude that either the veteran's back disability was the direct result of an injury during INACDUTRA or that a preexisting back disability was aggravated by injury during INACDUTRA. The focus of the Board's decision was analyzing whether the veteran sustained a back injury during INACDUTRA, as he had alleged. The veteran argues that the January 1986 Board decision was erroneous as 38 C.F.R. § 3.1(m), regarding line of duty determinations, was not properly applied. See also Gonzales v. Brown, 15 Vet. App. 387 (1997) (unpublished Memorandum decision); Kinnaman v. Principi, 4 Vet. App. 20 (1993). It is also argued that the Board denied the veteran the benefit of the statutory presumptions of soundness at the time of entering service and of aggravation of a preservice disability during service. With regard to the veteran's first argument, the Board did indeed fail to properly apply 38 C.F.R. § 3.1 (m) in its January 1986 decision. The wording of 38 C.F.R. § 3.1 (m) (1985) gives VA little leeway to look behind a service department determination. The regulation is explicit in making service department line of duty determinations binding on VA unless certain narrow circumstances are present such as desertion, dishonorable discharge or criminal activity, or unless a finding of service incurrence is "patently inconsistent" with the requirements of laws administered by VA. VA regulations do not define the circumstances in which a finding of service incurrence would be "patently inconsistent" with VA law. In the absence of clear regulatory authority or judicial clarification of the phrase, the Board is unwilling to take the position that a disagreement with the sufficiency of the evidence upon which the service department determination was based by itself renders that determination patently inconsistent with VA law. The Board's conclusion that the March 1985 line of duty determination was inconsistent with the medical records and reflected recent allegations by the veteran may be correct, but it is also true that the service department conducted its own investigation and that its determination was also supported by substantial evidence, albeit some of which consisted of lay statements that had also been presented to VA. It cannot be determined whether the investigator may have had access to information not available to VA or whether the service department record was substantially the same as VA's. In either case, the service department was satisfied that the available evidence was sufficient to establish that a back injury did in fact occur on May 2, 1982, under the circumstances reported by the veteran, and the presence of conflicting evidence in the VA file was not, in and of itself, sufficient grounds to reject the service department findings. Therefore, the service department finding that the veteran sustained a back injury in service in the line of duty, in addition to being evidence to support the veteran's service connection claim, was binding on VA as a matter of law. 38 C.F.R. § 3.1(m) (1985). Now, the question becomes whether the Board's failure to properly apply 38 C.F.R. § 3.1(m) was outcome determinative. In other words, if the Board had properly applied 38 C.F.R. § 3.1(m) in its January 1986 decision, would the claim of service connection for a low back disability have been granted given evidence establishing that the injury in service was productive of disability? Shedden v. Principi, 381 F. 3d. 1162, 1166-67 (Fed. Cir. 2004) (despite the presumption that a disease or injury was incurred during active duty, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the particular event or circumstance that gave rise to the in- service injury.) The Board will first address whether the veteran had a back disability prior to his May 2, 1982, injury during INACDUTRA. The record reflects that the veteran indicated he was involved in a motorcycle accident in 1976. See generally July 1982 Hendricks County hospital records. Records related to the 1976 motorcycle accident were not on file at the time of the Board's January 1986 decision. Subsequently dated evidence to include Reserve examinations in April 1976, February 1978, and April 1982, all consistently demonstrated that his spine was normal following the 1976 accident. Notably, on the April 1982 Reserve examination, a history of a HNP and degenerative problems were noted, but it was also noted that he had recovered and that there was no interference with work or duty. In sum, all the competent medical evidence on file clearly and undebatably established that any preservice back condition had resolved prior to the May 2, 1982, injury during INACDUTRA. Although the veteran was not entitled to the statutory presumption of soundness given his INACDUTRA status, the Board, in its January 1986 decision, should have nevertheless determined that his preservice back condition had resolved given the uncontradicted and consistent objective evidence of a normal spine prior to his INACDUTRA service in May 1982. The record shows that the veteran injured his knee and back when he fell down a hill on May 1982 during INACDUTRA. He sought medical treatment for both his injuries but was only treated for his knee. A line of duty determination is on file which reflects that he did indeed injure his back on May 2, 1982, during INACDUTRA. This determination is binding on VA. Specific medical nexus evidence regarding whether the injury during INACDUTRA was productive of disability includes an April 1985 Medical Board examination report. The April 1985 examiner observed that the veteran's history of back problems dated back to an injury on a training exercise in May 1982. Following a physical examination, it was determined that he was unable to perform military duty due to low back pain and he was discharged from the Reserves because of such. Similarly, an August 1982 statement from a private examiner reflects that the veteran's back disability is related to service. Both opinions clearly support the veteran's claim of service connection as they clearly attribute his back disability to his inservice back injury during INACDUTRA. There is no objective medical evidence which suggests that the back injury in service was not productive of disability. In sum, the Board committed error by failing to properly consider the line of duty determination, which found that the veteran had sustained a back injury during INACDUTRA, as binding and failing to consider that the inservice injury was productive of disability, ultimately requiring his separation from service. Whether the veteran had a back disability from a motorcycle accident or other incident prior to the May 2, 1982, injury is essentially irrelevant as the evidence clearly and unmistakably shows that the inservice injury, alone, was disabling. Given the aforementioned, it is concluded that the Board's January 1986 decision, denying service connection for a back disability, was the product of CUE. ORDER The motion for revision or reversal of the January 1986 decision of the Board on the basis of CUE is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals