Citation Nr: 1422654 Decision Date: 05/19/14 Archive Date: 05/29/14 DOCKET NO. 14-16 731 ) DATE ) ) THE ISSUE Whether the April 1982 Board of Veterans' Appeals (Board) decision denying service connection for allergic rhinitis should be revised or reversed on the grounds of clear and unmistakable error (CUE). (The issues of entitlement to service connection for sinusitis and whether new and material evidence have been received to reopen service connection for allergic rhinitis are addressed in a separate Board decision). REPRESENTATION Moving Party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran is the Moving Party in this action. He had active service from June 1977 to June 1980. This matter is currently before the Board on the Moving Party's December 2013 motion for revision or reversal on the grounds of CUE in the April 1982 Board decision denying service connection for allergic rhinitis. FINDINGS OF FACT 1. In April 1982, the Board denied service connection for allergic rhinitis on the basis that the Veteran's allergic rhinitis preexisted service and was not aggravated therein. The Moving Party was provided with a copy of the decision. He did not appeal the adverse decision to the United States Court of Appeals for Veterans Claims (Court). 2. The evidence of record at the time of the April 1982 Board decision establishes that the Veteran is presumed to have had normal sinuses upon entrance into service in June 1977, allergic rhinitis during active service in May 1979, October 1979, November 1979, and May 1980, and continued allergic rhinitis symptoms and treatment thereafter. 3. The correct facts, as they were known at that time, were before the Board in April 1982; however, the Board decision incorrectly applied the statutory and regulatory provisions in existence at that time (i.e., the presumption of soundness and the "clear and unmistakable" standard of review) such that the outcome of the claim would be manifestly different but for the legal errors. CONCLUSION OF LAW The April 1982 Board decision denying service connection for allergic rhinitis was clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-1411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced the Department of Veterans Affairs' (VA) duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Court has directed that the VCAA does not apply to motions for revision or reversal based on CUE. Hines v. Principi, 18 Vet. App. 227, 235 (2004); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). See also 38 C.F.R. § 20.1411 (obligations imposed by other statutes listed are not applicable to motions to revise or reverse Board decisions). The Court has clarified that CUE motions are not conventional appeals, but rather are requests for revision of previous decisions. A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Moreover, that litigant has the burden of establishing CUE on the basis of the evidence then of record. Livesay, 15 Vet. App. at 178-179. As such, the duties specified in the VCAA are not applicable to allegations of CUE in a prior Board decision. Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay at 165. CUE Motion The Moving Party alleges that an April 26, 1982 Board decision, which denied service connection for allergic rhinitis, involved CUE. The Moving Party specifically alleges that the April 1982 Board decision did not correctly apply the statutory and regulatory principles of presumption of soundness or the presumption of aggravation in existence at the time of the decision, and that, if these presumptions had been properly applied, the outcome of the Board's April 1982 decision would have been manifestly different, resulting in a grant of service connection for allergic rhinitis. See Hearing Transcript at 3-4. Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior Board decision on the grounds of CUE. The applicable VA regulation in this case provides: Clear and unmistakable error 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. 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). 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 based upon the evidence of record at that time which, had it not been made, would have manifestly changed the outcome when it was made. See, e.g., Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991); Russell v. Derwinski, 3 Vet. App. 310 (1992); Porter v. Brown, 5 Vet. App. 233 (1993). If it is not absolutely clear that a different result would have ensued, the error complained of cannot be deemed clear and unmistakable. See 38 C.F.R. § 20.1403(c). CUE also does not encompass 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. See 38 C.F.R. § 20.1403(e). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. See Luallen v. Brown, 8 Vet. App. 92 (1995). The mere misinterpretation of facts also does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991), receded from on other grounds in McGinnis v. Brown, 4 Vet. App. 239 (1993). Moreover, the error must be one that would have manifestly changed the outcome at the time that it was made. See Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993); Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Turning to the merits of the Moving Party's CUE allegation, the Board observes that the evidence contained in the claims file in April 1982 consisted of service treatment records (which included an enlistment examination report from December 1976, clinical treatment records, and an April 1980 service separation examination report), a November 1980 VA examination report, and post-service VA treatment records. VA laws and regulations in effect at the time of the April 1982 Board decision are essentially unchanged from those currently in existence, except for renumbering. In pertinent part, they are as follows: Service connection is granted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 310 (1982) (currently 38 U.S.C.A. § 1110 (West 2002)). Every veteran shall be taken 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 311 (1982) (currently 38 U.S.C.A. § 1111 (West 2002)). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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) (currently 38 U.S.C.A. § 1153 (West 2002). In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any pre-existing conditions were not aggravated by service. The Federal Circuit's interpretation of 38 U.S.C.A. § 1111 has retroactive effect, and failure to consider both prongs of the section 1111 requirement for rebutting the presumption of soundness can serve as the basis for CUE. See Rivers v. Roadway Express, 511 U.S. 298, 311, 312 (1994). In its April 1982 decision, the Board specifically cited the presumptions of soundness and aggravation. The Board addressed the first prong of the presumption of soundness by finding that, while allergic rhinitis was not "noted" on enlistment, it preexisted service as evidenced by numerous in-service treatments for allergic-type symptoms where the Veteran gave a clinical history of allergy since age 11. The April 1982 Board decision also outlined evidence, particularly the service separation examination and VA examination indicating a normal pathology, ultimately finding that the allergic rhinitis was not aggravated during service. See April 1982 Board decision at 4. However, the evidence at the time of the April 1982 Board decision did not meet the onerous clear and unmistakable evidence standard to show that the Veteran's preexisting allergic rhinitis was clearly and unmistakably not aggravated by service; thus, the evidence did not rebut the presumption of soundness at the time of the April 1982 decision. In short, had the correct legal test been applied, the Veteran would have been found to be sound upon entry into service, and the Board would have concluded that the presumption of soundness had not been rebutted. But for the April 1982 Board's incorrect application of the presumption of soundness, the outcome of the April 1982 decision would have been manifestly different, that is, service connection for allergic rhinitis would have been granted, because the question would have become one of service incurrence rather than service aggravation. Wagner, 370 F.3d at 1089 (holding that it was clear that Congress intended to effectively convert aggravation claims into ones for service connection when the government failed to overcome the presumption of soundness under 38 U.S.C.A. § 1111). At the time of the April 1982 Board decision, the service-related evidence showed that, beginning in May 1979, the Veteran was seen on multiple occasions for treatment of itchy eyes and runny nose, which were attributed to a longstanding allergy. Further treatment was noted in October 1979, November 1979, and May 1980, and the Veteran was evaluated at the allergy clinic. Clinical testing resulted in an impression during service of allergic rhinitis. Post service, the November 1980 VA examination revealed a diagnosis of allergic rhinitis by history and a mild skin test. VA treatment records from December 1980 and January 1981 indicated treatment with allergic injections. Based on the above, The April 1982 Board decision should have found the Veteran to be sound on entrance. The remaining question is whether service connection for allergic rhinitis would have been awarded had the April 1982 Board decision applied the legal criteria correctly. As noted above, with the correct application of the presumption of soundness, the Veteran's claim has been transformed from one of aggravation to one of direct service incurrence. As the evidence shows treatment for, and diagnosis of, allergic rhinitis in service and continuing, post-service complaints of, diagnosis of, and treatment for allergic rhinitis, essentially immediately after separation from service (see June 1980 Claim for Compensation and Pension), the Board must now conclude that, but for the misapplication of the law regarding the presumption of soundness in the April 1982 Board decision, the outcome of the April 1982 Board decision would have been manifestly different such that service connection based on service incurrence would undebatably have been granted. Accordingly, the Board finds that the April 1982 Board decision denying service connection for allergic rhinitis was clearly and unmistakable erroneous, and should be reversed (service connection for allergic rhinitis granted). ORDER The April 1982 Board decision, having been found to be clearly and unmistakably erroneous in denying service connection for allergic rhinitis, is reversed to reflect the grant of service connection for allergic rhinitis. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs