Citation NR: 9733058 Decision Date: 09/29/97 Archive Date: 10/02/97 DOCKET NO. 95-37 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether clear and unmistakable error was committed in a March 1953 rating determination, which denied service connection for a heart disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active military service from September 1950 to September 1952. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the regional office (RO) committed clear and unmistakable error in its March 1953 rating determination by denying service connection for a heart disorder. He maintains that as his heart disorder arose within one year of his separation from service, service connection should have been granted for this disorder. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the RO committed clear and unmistakable error (CUE) in its March 1953 rating determination by not granting service connection for myocarditis. FINDING OF FACT Myocarditis was found to be present within one year of the veteran’s separation from service. CONCLUSION OF LAW The March 1953 rating determination denying service connection for a heart disorder contained clear and unmistakable error. 38 U.S.C.A. §§ 5107(a), 7105 (West 1991); 38 C.F.R. § 3.105 (1997); 38 C.F.R. §§ 2.1080, 2.1086 (1947). REASONS AND BASES FOR FINDINGS AND CONCLUSION Previous determinations which are final and binding, including decisions of service connection, 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(a) (1997). When a claim of CUE is stated, [i]t must always be remembered that 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993). In the Fugo case, the Court of Veterans Appeals (Court) initially noted that "there is a presumption of validity to otherwise final decisions, and where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. " Fugo, 6 Vet.App. at 44 (citations omitted.) Further, "it is difficult to see how either failure in "duty to assist" or failure to give reasons or bases could ever be CUE; but if so claimed, the claimant must state why it is CUE and present a compelling case that the result would have been manifestly different." Fugo v. Brown, 6 Vet.App. 40, 44. A determination of whether CUE occurred must be based on the existing law and evidence of record at the time of the decision under review. Russell v. Principi, 3 Vet.App. 310, 314 (1992). In Thompson v. Derwinski, 1 Vet.App. 251 (1991), the Court held that a difference of opinion as to the facts or a disagreement with the original rating and its interpretation of the facts is not the type of administrative reversible error contemplated under 38 C.F.R. § 3.105(a). The pertinent laws and regulations governing service connection at the time of the March 1953 rating determination included 38 C.F.R. § 2.1080 and 2.1086 (1947). Under the pertinent provisions, certain chronic diseases that became manifest to a degree of 10 percent or more within one year from the date of separation from active service warranted service connection. See § 2.1080. Myocarditis, if manifest to a degree of 10 percent within one year of service separation, warranted service connection. See § 2.1086. The RO, in its March 1953 rating determination, denied service connection for rheumatic heart disease. Service connection was denied on the grounds that rheumatic fever and rheumatic heart disease were incurred after service. In March 1953, a letter was sent to the veteran informing him of the decision and of his procedural and appellate rights. The veteran did not appeal this decision. Thus, it became final. See 38 U.S.C.A. § 7105. Evidence of record at the time of the March 1953 rating decision included the veteran’s service medical records and a January 1953 hospitalization report for a period of hospitalization from December 16, 1952, to January 27, 1953. A review of the veteran’s service medical records reveals no evidence of any heart disorder or rheumatic fever. In December 1952, the veteran was hospitalized with complaints of pain in his joints for three weeks. He reported that he had been in good health until two months prior to his hospitalization, when he developed tonsillitis which was subsequently treated with shots. He indicated that he began to have chills in the evening approximately three weeks prior to his being hospitalized. The veteran noted that he awoke the following day with pain in his shoulders, knees, and ankles. He also reported pain in his low back, fingers, and toes. He noted that his ankles and knees felt warmer than the rest of his body and were slightly swollen and tender. He indicated that it was painful to move any of the affected joints. He reported that his temperature was elevated but that he did not know how high. He also indicated that he had had night sweats for three weeks. The veteran stated that his symptoms began to subside, but when he tried to return to work a week later, the joint pain recurred. He denied having had any cardiac, respiratory, or genitourinary symptoms, or any weight loss. Physical examination revealed normal findings with the exception of a few small nontender anterior cervical lymph nodes. His lungs were clear to auscultation and percussion. His heart was normal with no enlargement, thrills, or murmurs being noted. There was no joint limitation or pain. Chest x-rays were negative. An electrocardiogram revealed evidence of pericarditis and myocarditis. On December 29, an apical systolic murmur was heard for the first time. On January 14, an aortic diastolic murmur was heard in the third interspace to the left of the sternum. Due to the sudden onset of cardiac murmurs, the veteran was placed on cortisone. He became completely asymptomatic but the murmurs were still present. At the time of discharge, diagnoses of rheumatic fever, treated-improved, and rheumatic myocarditis, treated- unimproved, were rendered. The Board is of the opinion the RO committed clear and unmistakable error in denying service connection for a heart disorder, namely myocarditis, in its March 1953 rating determination. While there were no heart abnormalities or disorders noted in service, the veteran was found to have myocarditis in January 1953, well within one year of his separation from service. Myocarditis was and is a chronic disease by law. The regulations in effect at that time clearly indicated that if myocarditis was manifest to a degree of 10 percent within one year of his separation from service, then it was presumed to have been incurred in service. See 38 C.F.R. § 2.1080, 2.1806 (1947). The March 1953 rating decision did not address whether the presumptive provisions under the regulations for myocarditis had been rebutted. In fact, that rating decision did not even discuss the matter of presumptive service connection at all. That should have been done and, had it been done, it is inconceivable that, given the veteran’s lengthy hospitalization and multiple cardiac abnormalities, the RO could have concluded that these manifestations were not to the required degree. There was no articulated basis in the record, certainly no “clear and convincing” medical evidence, to rebut the presumption. ORDER The rating decision of March 1953, in its failure to grant service connection for a heart disorder, namely myocarditis, was clearly and unmistakably erroneous, and service connection for that disorder is granted. John E. Ormond, Jr. Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -