Citation Nr: 1410978	
Decision Date: 03/14/14    Archive Date: 03/20/14

DOCKET NO.  10-22 802A	)	DATE
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THE ISSUE

Whether there was clear and unmistakable error (CUE) in the July 7, 1975 decision of the Board of Veterans' Appeals (Board), which denied entitlement to service connection for pes planus.


REPRESENTATION

Moving party represented by:  Daniel G. Krasnegor, Esq.


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel



INTRODUCTION

The moving party is a veteran who served on active duty from October 1973 to December 1973.

This matter comes before the Board as an original action on the motion of the moving party to reverse or revise, on the basis of CUE, a Board decision promulgated on July 7, 1975, in which the Board denied a claim for entitlement to service connection for pes planus.

The Board denied the moving party's motion in a March 2013 decision.  The moving party appealed that denial to the United States Court of Appeals for Veterans Claims (Court).  In September 2013, the Court issued an order granting a joint motion to remand (JMR) the matter to the Board.  The case has been returned to the Board for further adjudication in light of the September 2013 Court Order and JMR.


FINDING OF FACT

In its July 1975 decision denying service connection pes planus, the Board applied the incorrect evidentiary standard in finding that the Veteran's preexisting pes planus was not aggravated by active military service beyond its natural progression; application of the correct evidentiary standard to the evidence of record at the time compels the conclusion that service connection would have been granted in the July 1975 Board decision.


CONCLUSION OF LAW

Clear and unmistakable error was committed in the July 1975 Board decision denying service connection for pes planus and reversal of that decision is warranted.  38 U.S.C.A. § 7111  (West 2002); 38 C.F.R. §§ 20.1400 , 20.1403, 20.1404 (2013); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the motion to reverse or revise, on the basis of CUE, this motion is being granted, as is discussed in detail below.  As such, the Board finds that any error related to the VA's duty to notify and assist is moot.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The moving party asserts that there was CUE in the July 7, 1975, Board decision denying entitlement to service connection for pes planus.  The essence of the Veteran's argument is that the Board failed to adequately rebut the presumption of soundness and the presumption of aggravation with clear and unmistakable evidence.  Specifically, the Veteran argues that the Board's decision was not supported by clear and unmistakable evidence that his pes planus preexisted service and was not aggravated in service.  Upon review of the July 1975 decision and evidence of record, as well as the relevant case law, the Board agrees that reversal based on CUE is warranted.  

CUE is a very specific and rare kind of error; it is 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.  See, e.g., Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).  Allegations of CUE must be raised with sufficient particularity.  See Phillips v. Brown, 10 Vet. App. 25 (1997).  To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.  See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra.

At the time of the July 1975 Board decision, applicable law provided that service connection was to be granted for a disability resulting from disease or injury incurred in or aggravated by wartime service.  38 U.S.C. § 310 (West 1974) [now 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013)].  

In any case, a veteran who served during a period of war or during peacetime service after December 31, 1946, was presumed in sound condition except for defects noted when examined and accepted for service.  The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to acceptance and enrollment and was not aggravated by such service.  38 U.S.C. §§ 331, 337 (West 1974) [now 38 U.S.C.A. § 1111 (West 2002 & Supp. 2013)].  The implementing regulation provided that a veteran will be considered have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto.  38 C.F.R. § 3.304(b) (1974).  The regulation did not contain any mention of a requirement that clear and unmistakable evidence demonstrate that the disorder was not aggravated in order to rebut the presumption of soundness.  

The Board notes that in a precedent opinion which came many years after the Board decision in question, the VA General Counsel concluded that 38 C.F.R. § 3.304(b) conflicted with 38 U.S.C.A. § 1111, and that the regulation was therefore invalid.  See VAOPGCPREC 3-2003 (2003).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) adopted the General Counsel's position.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  Thus, under current law, the presumption of soundness in the Veteran's case is rebutted only if there is clear and unmistakable evidence that the disease in question existed prior to service and if there is clear and unmistakable evidence that any preexisting condition was not aggravated by service.  However, the Federal Circuit has recently held that its interpretation of § 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains "what the statute has meant since the date of enactment."  Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (quoting Patrick v. Nicholson, 242 Fed.Appx. 695, 698, 2007 WL 1725465 (Fed. Cir. 2007)).  As Wagner merely clarified what the evidentiary standard always had been, including prior to the General Counsel opinion, this was not a new interpretation or law.   Accordingly, the clear-and-unmistakable-evidence standard should have been applied to the issue of aggravation in the Board's July 1975 decision.  See Patrick, supra.

A preexisting injury or disease was considered to have been aggravated by active service, where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease.  38 U.S.C. § 353 (West 1974) [now 38 U.S.C.A. § 1153 (West 2002 & Supp. 2013)]; 38 C.F.R. § 3.306(a) (1974).  

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C. § 353 (West 1974) [now 38 U.S.C.A. § 1153 (West 2002 & Supp. 2013)]; 38 C.F.R. § 3.306(b) (1974).

As noted above, the moving party has argued that the Board did not establish by clear and unmistakable evidence that his pes planus was not aggravated by service.  The July 1975 Board decision concluded that the Veteran's pes planus preexisted service, and did not undergo a chronic change in underlying pathology during service.  The Board referenced the Medical Board's finding that the Veteran's pes planus was congenital and further concluded that, given the short period of time between the Veteran's induction and foot complaints and the absence of any intercurrent injury, it was not probably that his feet underwent any basic structural changes.  Relying on "accepted medical principles," the Board found the Veteran's pes planus must have preexisted his brief period of service.  Essentially, the Board found that the Medical Board's finding that pes planus preexisted service and the referenced accepted medical principles established by clear and unmistakable evidence that the Veteran's disability preexisted service.

The Board further found that the Veteran's preexisting pes planus was not aggravated by service.  Specifically, the Board concluded that his in-service symptoms of foot pain were merely a continuation of the underlying pathology that existed prior to service.  However, the Board failed to consider the proper evidentiary standard - whether there was clear and unmistakable evidence that the Veteran's preexisting condition did not undergo a worsening in service.  The Board notes that change in interpretation of a statute or regulation does not constitute CUE.  38 C.F.R. § 20.1403(d) (2013).  As discussed above, the Court's decision in Wagner was not a change in interpretation of the statute, but rather a clarification of what the statute had always meant.  See Patrick, supra.  As such, the Board now finds that the statutory provisions extant at the time of the July 1975 decision were undebatably incorrectly applied.  

The only remaining question is whether this error, had it not been made, would have manifestly changed the outcome of the Board's July 1975 decision.  See Stallworth, supra; Damrel, supra; Russell, supra.  The Board finds that it would have.

In the July 1975 decision, the Board concluded that the Veteran's in-service symptoms of foot pain were merely a continuation of the underlying pathology that existed prior to service.  Although he had not complained of symptoms prior to service, the Board found that the underlying pes planus disability or pathology was not aggravated in service.  However, a Medical Board examination noted that the Veteran's congenital pes planus had been aggravated by the rigors of basic combat training.  Although the Medical Board ultimately concluded that the Veteran's pes planus preexisted service and was "not service aggravated," the earlier statement of aggravation by the rigors of combat training at least brings into question whether the Veteran's pes planus was aggravated by service.  As such, the evidence of record at the time of the July 1975 Board decision fails to rise to the level of clear and unmistakable evidence that the preexisting disability was not aggravated by service.  Without such evidence, service connection should have been granted on the basis of aggravation.  This constitutes a manifestly different outcome.

As all three criteria for establishing CUE have been met, the Board finds that CUE was committed in the July 1975 Board decision denying service connection for pes planus and that reversal of that decision is warranted.  See Stallworth, supra; Damrel, supra; Russell, supra.  This finding has the same effect as if the grant of service connection for the Veteran's pes planus had been made at the time of the July 1975 decision.


ORDER

The July 1975 Board decision, denying service connection for pes planus, is reversed on the grounds of clear and unmistakable error, and the motion is granted.



                       ____________________________________________
	JONATHAN B. KRAMER
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs