Citation Nr: 0011343 Decision Date: 04/28/00 Archive Date: 05/04/00 DOCKET NO. 98-13 874A ) DATE ) ) THE ISSUES 1. Whether the Board of Veterans' Appeals committed clear and unmistakable error in a November 3, 1953 decision denying service connection for pulmonary tuberculosis. 2. Whether the Board of Veterans' Appeals committed clear and unmistakable error in a July 29, 1955 decision denying service connection for pulmonary tuberculosis. REPRESENTATION Moving Party Represented by: Christopher J. Kalil, Attorney ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from February 1944 to September 1945. He was a prisoner of war of the German government from September 1944 to May 1945. This matter comes before the Board of Veterans' Appeals (Board) in light of a claim for review of prior Board decisions on the basis of clear and unmistakable error (CUE) submitted by the veteran in August 1999. This claim followed an August 1998 submission from the veteran, in which he requested revision of "all prior ratings" on the basis of CUE, and a September 1998 letter from the RO informing the veteran of his right to proceed before the Board with a CUE claim in regard to the 1953 and 1955 decisions. FINDINGS OF FACT 1. In decisions issued on November 3, 1953 and July 29, 1955, the Board denied entitlement to service connection for pulmonary tuberculosis. 2. The record does not suggest that any of the correct facts, as they were known at time of these decisions, were not before the Board at the time of the November 3, 1953 and July 29, 1955 decisions. 3. The November 3, 1953 and July 29, 1955 decisions did not involve improper application of statutory and regulatory provisions extant at the time of those decisions. CONCLUSIONS OF LAW 1. The November 3, 1953 decision, in which the Board denied entitlement to service connection for pulmonary tuberculosis, does not contain CUE. 38 U.S.C.A. § 7111 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.1400, 20.1403 (1999). 2. The July 29, 1955 decision, in which the Board denied entitlement to service connection for pulmonary tuberculosis, does not contain CUE. 38 U.S.C.A. § 7111 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.1400, 20.1403 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7111 (West 1991 & Supp. 1999), the Board has, for the first time, been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under the new statute may be filed at any time after the underlying decision is made. Pursuant to VAOPGCPREC 1-98 (Jan. 13, 1998), the Board's new authority applies to any claim pending on or filed after November 21, 1997, the date of enactment of the statute. See 38 C.F.R. § 20.1400 (1999). The statute and implementing regulation provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon the request of the claimant. 38 U.S.C.A. § 7111 (West 1991); 38 C.F.R. § 20.1400 (1999). In the implementing regulation, CUE is defined as: a very specific and rare 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) (1999). The record to be reviewed 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 issued. 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 when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be deemed clear and unmistakable. 38 C.F.R. § 20.1403(c) (1999). Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill the VA's duty to assist the veteran with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d) (1999). 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. 38 C.F.R. § 20.1403(e) (1999). Prior decisions issued by the United States Court of Appeals for Veterans Claims (Court) in regard to the issue of CUE in an RO rating decision provide a further framework for determining whether CUE exists in a Board decision. The Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has also held that a finding that there was such error "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 clear and unmistakable error. 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). In this case, the veteran has argued, in essence, that CUE should be found in the November 11, 1953 and July 29, 1955 Board decisions because the evidence then of record supported his claim for service connection for pulmonary tuberculosis. Under the laws and regulations of the VA in effect at the time of the November 1953 Board decision, service connection was warranted for any disease diagnosed after discharge from war or peacetime service when all of the evidence, including lay evidence and all evidence pertinent to the circumstances of service, established under the usual rules, including resolution of reasonable doubt in the claimant's favor, that the disease was incurred in service. 38 C.F.R. § 3.78 (1953); see also 38 U.S.C. §§ 471, 700, 701 (1952). 38 C.F.R. § 3.86 (1953) provided for service connection for numerous chronic diseases, including tuberculosis, on a presumptive basis when manifested to a compensable degree within a noted time period following discharge from service. Under 38 C.F.R. § 3.86(c) (1999), the presumptive period for active tuberculosis was three years from the date of discharge, and active pulmonary tuberculosis diagnosticated by approved methods during the fourth year was held to have preexisted the diagnosis by six months in minimal (incipient) cases, by nine months in moderately advanced cases, and by twelve months in far advanced cases. 38 C.F.R. § 3.86(d)(4) (1953) addressed cases where pulmonary tuberculosis was noted to be previously active but was presently inactive. 38 C.F.R. § 3.96(a) (1953) allowed for direct service connection for inactive tuberculosis first shown by x-ray during service. This regulation held that such a disability would not be considered to have preexisted service, provided that minimal lesions were first shown after at least six months of such service, moderately advanced lesions were first shown after nine months of such service, and far advanced lesions were first shown after twelve months of such service; this regulation was made effective only from February 26, 1951. Also, 38 C.F.R. § 3.133 (1953) set forth the criteria for the determination of "active" tuberculosis; essentially, service department diagnoses were to be accepted unless, after considering all the evidence, including that favoring or opposing tuberculosis and that favoring or opposing activity, a board of medical examiners or the chief medical officer certified that such diagnoses were incorrect. The Board has reviewed the laws and regulations from the 1955 edition of the Code of Federal Regulations and observes that, among the laws and regulations described, only 38 C.F.R. § 3.86(d)(4), pertaining to inactive tuberculosis, was textually amended. Under the amendment, a one-year presumptive period was for application in cases of previously active but presently inactive pulmonary tuberculosis. The 1953 and 1955 editions of the Code of Federal Regulations contained no special regulations providing for consideration of claims for service connection for pulmonary tuberculosis in cases where the veteran was a prisoner of war. In reviewing the facts of this case, the Board notes that records considered at the time of the prior Board decisions included the veteran's service medical records. These records show that the veteran was treated for pneumonia in 1944 while a prisoner of war of the German government. However, additional subsequent service medical records dated after the veteran's release as a prisoner of war and including the veteran's separation examination were negative for any residuals of pneumonia or other respiratory complaint. Chest x-rays were noted to be negative on these occasions. The record also contained a December 1951 medical statement from Harold L. Pender, M.D., who indicated that he found no evidence of a pulmonary lesion in 1946, despite chest discomfort and a cough, but that a December 1951 examination raised a question as to the diagnosis of minimal tuberculosis. A second December 1951 medical statement, from P. Ciaglia, M.D., indicates that an x-ray from December 1951 showed a diagnosis of minimal, active tuberculosis. Dr. Ciaglia described the veteran's history of pneumonia while kept as a prisoner of war during World War II and opined that the veteran's in-service pneumonia was of tuberculosis etiology. As such, Dr. Ciaglia rendered the further opinion that the veteran's original tuberculosis infection was incurred during his period of imprisonment. A February 1952 medical report from Zoltan Mann, M.D., contains a diagnosis of minimal and probably active tuberculosis of the lung. In May 1952, the veteran's in-service and post-service x-rays were reviewed by a VA physician who was the Chief of the Tuberculosis Unit in Buffalo, New York, who noted that there was evidence of inactive residuals of minimal pulmonary tuberculosis of primary type shown at induction in 1944, no advancement of the lesion during service, and no evidence of instability of the lesion until December 1951. A discharge report from Broadacres Sanatorium, dated in January 1953, contains a diagnosis of minimal and active tuberculosis of the lungs for one year. The veteran underwent a segmental resection of the left upper lobe, with a modified thoracoplasty, in January 1953, after which his prognosis was described as excellent. In its November 1953 decision, the Board made note of the records described above, including the evidence from Dr. Ciaglia and Broadacres Sanatorium, but found that, since the veteran was not treated for active tuberculosis in service and did not manifest active tuberculosis to a compensable degree until after the regulatory presumption period, service connection was not warranted for pulmonary tuberculosis. In reaching this determination, the Board indicated that there was no tuberculosis involvement with the veteran's in-service pneumonia. The evidence received into the record subsequent to the November 1953 Board decision and prior to the July 1955 Board decision includes two further statements from Dr. Ciaglia. In a June 1952 statement, Dr. Ciaglia noted that there was "no doubt" in his mind that the veteran was infected with a tuberculous lesion while kept as a prisoner of war in Germany. In a September 1954 statement, Dr. Ciaglia noted that in-service chest x-rays were negative for abnormalities but stated that his conclusion as to etiology was supported by the fact that, during the veteran's period as a prisoner of war, his pulmonary condition was productive of spitting of blood and loss of weight. In its July 1955 decision, the Board made a reference to the September 1954 statement by Dr. Ciaglia to the extent that he found in-service x-rays to be negative for tuberculous disease. Again, however, the Board found that active tuberculosis was not incurred during service and was not manifested to a compensable degree within the regulatory presumptive period. As such, the denial of service connection for pulmonary tuberculosis was continued. In reviewing the facts of this case, the Board observes that there is no indication, and the veteran has not alleged, that the correct facts, as they were known at the time, were not before the Board at the time of the issuance of the November 1953 and July 1955 decisions. There is also no indication that the correct laws and regulations were incorrectly applied. Rather, the Board, while not listing the specific laws and regulations described above, applied the provisions of the laws and regulations concerning direct service connection and presumptive service connection for pulmonary tuberculosis and found that the evidence did not support the veteran's claim. As such, the Board finds that, in the November 1953 and July 1955 decisions, the Board correctly applied the statutory and regulatory provisions in effect at that time. The Board has considered the veteran's argument that the Board incorrectly decided his claim in the 1953 and 1955 decisions, given the evidence then of record. In this regard, the Board notes that several statements from Dr. Ciaglia support the veteran's contention that his tuberculosis was of in-service onset, and the portions of these statements favorable to the veteran's claim were not addressed in the two Board decisions. However, as noted above, the mere misinterpretation of facts, as alleged by the veteran, does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. at 253. Furthermore, a disagreement as to how the facts were weighed or evaluated does not constitute CUE. See 38 C.F.R. § 20.1403(d) (1999). In short, there is no indication that the Board failed to correctly apply the statutory and regulatory provisions extant at the time of the November 1953 and July 1955 decisions to the correct facts as they were known at the time that those decisions were issued. In the absence of the kind of error of fact or law which would compel the conclusion that the results would have been manifestly different but for error, there is simply no basis upon which to find CUE in the Board's November 3, 1953 and July 29, 1955 decisions. The veteran's motion with regard to both decisions must, therefore, be denied. ORDER In the absence of clear and unmistakable error in the Board's November 3, 1953 decision denying service connection for pulmonary tuberculosis, the appeal is denied. In the absence of clear and unmistakable error in the Board's July 29, 1955 decision denying service connection for pulmonary tuberculosis, the appeal is denied. S. L. KENNEDY Member, Board of Veterans' Appeals