Citation Nr: 0812029 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-24 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Whether there is clear and unmistakable error (CUE) in a decision of November 1980 which denied service connection for diabetes mellitus (DM). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ernest Lee, Associate Counsel INTRODUCTION The veteran had active service from September 1960 to September 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2003 by the Department of Veterans Affairs (VA) Anchorage, Alaska Regional Office (RO). The July 2003 decision determined that there was no CUE in a prior rating decision from November 1980 which denied service connection for DM. The Board notes that the February 2008 Informal Hearing Presentation submitted by the veteran's representative seek to reopen the claim for service connection for DM in addition to a review of the claim for CUE. However, the only issue which has been developed and certified for appellate review is the claim for CUE. The request to reopen the claim for service connection is hereby be referred to the RO for review. FINDINGS OF FACT 1. The veteran's claim for service connection for DM was denied by the RO in November 1980. 2. The veteran did not file a notice of disagreement (NOD) within one year of notification of the decision. 3. The decision of November 1980, which denied service connection for DM, was based on the correct facts as they were known at that time, and was in accordance with the existing law and regulations. CONCLUSION OF LAW The November 1980 rating decision, which denied the veteran's claim for service connection for DM, did not contain clear and unmistakable error. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.105(a), 3.400(k), 20.1403 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that there was CUE in the November 1980 RO decision which denied service connection claim for DM. It is alleged that the RO failed to adequately analyze the treatment records from the veteran's time in service when making a determination as to whether the veteran was diagnosed with DM. The veteran asserts that he should have been diagnosed with DM while in service based on the prescribed course of treatment and findings from medical examinations by the U.S. Air Force physician. The Board notes that the veteran filed his service connection claim for DM in October 1980, one month after retiring from service in September 1980. In the decision of November 1980, the RO concluded that the claim should be denied because DM was not shown by the evidence of record. The veteran was notified of the denial of his claim by letter in 1980. The veteran did not file a timely appeal with respect to the November 1980 RO decision when it was initially issued. The RO did not subsequently communicate with the veteran regarding its November 1980 decision until July 1995. The July 1995 letter informed the veteran that the November 1980 decision will remain final unless new and material evidence is submitted to the RO for the claim to be reopened for readjudication. The veteran would later submit medical treatment records from a U.S. Air Force medical facility from January 1994 to September 1995. The RO issued a decision in November 1995 which reaffirmed the November 1980 decision. The RO did not find the treatment records to be new and material. Under the applicable law and regulations, previous determinations which are final and binding, including decisions regarding service connection, will be accepted as being correct in the absence of clear and unmistakable error. See 38 C.F.R. § 3.105(a). As a preliminary matter, while the Board is generally required to address the Veterans Claims Assistance Act of 2000 (VCAA), the Board notes that it is not necessary to discuss the VCAA in connection with the veteran's allegation of CUE in this case. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The United States Court of Appeals for Veterans Claims ("the Court") has held that the provisions of the VCAA do not apply to a claim based on an allegation of CUE in a previous decision. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). The Court held that an attempt to obtain benefits based on an allegation of CUE "is fundamentally different from any other kind of action in the VA adjudicative process." Livesay, 15 Vet. App. at 178. An allegation of CUE does not represent a "claim," but rather is a collateral attack on a final decision. It involves a legal challenge to a prior decision and does not involve acquiring or submitting any additional evidence. Therefore, the provisions of the VCAA are not for application in the adjudication of the issue of CUE in a prior final RO decision. 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. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993); 38 C.F.R. § 20.1403(c). 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). The decision is to be based on the record and the law that existed when the challenged decision was made. 38 C.F.R. § 20.1403(b). A disagreement as to how facts were weighed or evaluated does not constitute clear and unmistakable error. 38 C.F.R. § 20.1403(d). 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. 38 C.F.R. § 20.1403(e). The regulatory definition of clear and unmistakable error was based on prior rulings of the Court. More specifically, it was observed in the notice of proposed rulemaking that Congress intended that VA adopt the Court's interpretation of the term "clear and unmistakable error." Indeed, as was discussed in the notice of proposed rulemaking, 63 Fed. Reg. 27,534-36 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1,567-68 (Daily Ed. Apr. 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Thus, the Board is permitted to seek guidance as to the existence of clear and unmistakable error in prior Board decisions based on years of prior Court precedent regarding clear and unmistakable error, such as Fugo v. Brown, 6 Vet. App. 40 (1993). Clear and unmistakable error may be factual, or it may be legal. On reviewing this allegation on its merits, the Board finds that there is no evidence of clear and unmistakable error based on the facts or the law. The evidence which was of record at the time the veteran submitted his service connection claim in October 1980 was his service medical records. The veteran was never diagnosed with DM while in service. The service medical records contain two records for Dental Patient History from September 1978 and November 1979. The veteran responded "No" when asked if he was ever treated for diabetes. The Board notes that the November 1979 Retirement Examination noted elevated fasting blood sugar levels, but also shows urinalysis was negative for sugar. The November 1979 Report of Medical History contained a disclosure whereby the veteran denied the presence of sugar in his urine. The Board does acknowledge that the veteran's subsequent service medical records contain a treatment record from December 1979 which stated the following: "mild hyperglycemia - possible mild AODM (adult-onset diabetes mellitus) or lipid disorder [eligible] secondary obesity" and "obesity." The Board notes that the examining physician from December 1979 stated only that there was a "possibility" of DM. No conclusive diagnosis was made by the examining U.S. Air Force physician. Indeed, the Board notes that the use of "possibility" in suggesting that the veteran may have suffered from diabetes at the time he was in service makes this is a speculative opinion and is not sufficient medical evidence to establish entitlement to service connection. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The Board notes that the same U.S. Air Force physician recorded statements in January 1980 which were even less supportive of the claim. The physician noted only "mild hyperglycemia, obesity" and also stated "good results with diet so far." Furthermore, the Board does take note that the RO acknowledged in its November 1980 decision that the veteran had a high fasting blood sugar as disclosed on his retirement exam but also noted that the veteran did not have polyuria, polyphagia, polydipsia or blurred vision. The RO also acknowledged that the veteran did have mild hyperglycemia but DM was not diagnosed. The Board notes that there was no evidence at the time of the November 1980 decision that the veteran was diagnosed with DM one year after leaving the service. The Board finds that the decision of November 1980, which denied service connection for DM, was based on the correct facts as they were known at that time. The rating decision shows that the RO considered all of the evidence which was of record at that time, namely the service medical records. The service medical records showed the veteran had the symptoms that are commonly associated with DM, but no conclusive diagnosis was made while in service. Although the veteran disagrees with the conclusions reached by the RO, an asserted failure to evaluate and interpret the evidence correctly is not clear and unmistakable error. See generally, Eddy v. Brown, 9 Vet. App. 52 (1996). The veteran's representative has argued that there were indicators in the service medical records that the veteran may have had DM, and this should have triggered a VA examination. However, the absence of a VA examination would not be clear and unmistakable error. See Allin v. Brown, 6 Vet. App. 207, 214 (1994). The Board finds that the decision by the RO was in accordance with the applicable law and regulations. A service- connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board acknowledges that evidence of record contains numerous treatment records documenting the veteran's post- service DM treatment. A post-service medical record from October 1980 at a U.S. Air Force medical facility stated "mild AODM." However, these documents will not be factored into the Board's review of the CUE claim because the documents were not of record at the time the November 1980 claim was decided. The Board concludes the November 1980 decision was not clearly and unmistakably erroneous in failing to award service connection for DM. There was no error of fact or law that if evaluated by the Board would result in a manifestly different conclusion to which reasonable minds could not differ. In reaching this conclusion, the Board observes that the evidence of record at the time of the November 1980 decision was correctly reported. Also, the pertinent statutory and regulatory provisions extant at the time of the November 1980 decision were correctly applied. Mere disagreement with the weighing of service medical records extant in 1980 does not amount to CUE. See Russell v. Derwinski, 3 Vet. App. 310 (1992) (en banc)). As such, the Board concludes that the November 1980 rating decision, which denied the veteran's claim for service connection for DM, did not contain clear and unmistakable error. ORDER Revision of the rating decision of November 1980 which denied service connection for DM, on the basis of clear and unmistakable error, is denied. ____________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs