Citation Nr: 0813383 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-15 063 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the Board of Veterans' Appeals decision of September 3, 1957 that denied service connection for residuals of a back injury. REPRESENTATION Moving party represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION This matter originally came before the Board of Veterans' Appeals ("BVA" or "Board") from a Motion by the moving party (hereinafter referred to as the "veteran") alleging clear and unmistakable error ("CUE") in a BVA decision issued on September 3, 1957 that denied service connection for residuals of a back injury. The veteran in this case had active service from January 1943 to November 1945. The Board denied the veteran's CUE claim in a decision dated in March 2005. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the "Court"). In July 2007 and August 2007, respectively, the Court issued a memorandum decision and judgment order pertaining to the veteran's motion. In its decision, the Court affirmed the portion of the Board's March 2005 decision regarding (1) its reasons and bases that there was a legally sufficient basis for the 1957 Board decision and (2) that the Board did not err by not addressing the presumption of soundness. However, the Court remanded the Board's 2005 decision to address the veteran's argument that the 1957 Board misapplied the presumption of service connection for chronic diseases diagnosed within one year of separation from service. See July 2007 CAVC memorandum opinion. The appeal was then returned to the Board for further review. In reviewing the veteran's claims file, the Board observes for the record that the RO appears to be working on another claim for the veteran involving a December 2006 rating decision in which the RO denied the veteran's request for automobile and adaptive equipment. See January 2007 notice of disagreement; February 2007 letter explaining the decision review process; the veteran's February 2007 request for decision review officer review. In correspondence received by the Board in March 2008 related to the veteran's CUE claim, the veteran's attorney sent in additional evidence pertaining to his automobile and adaptive equipment claim pending before the RO. As such, the Board REFERS this new evidence to the RO for its consideration and review. FINDINGS OF FACT 1. A BVA decision dated September 3, 1957 denied service connection for residuals of a back injury. 2. The record does not establish that any of the correct facts, as they were known at the time, were not before the Board on September 3, 1957. 3. The record does not establish that on September 3, 1957, the Board incorrectly applied the statutory or regulatory provisions at the time, to include the presumption of service connection for chronic diseases diagnosed within one year of separation from service, such that the outcome of the claim would have been manifestly different. CONCLUSION OF LAW The BVA decision of September 3, 1957 that denied service connection for residuals of a back injury was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002 & Supp. 2006); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404, 20.1409 (2007); 38 C.F.R. §§ 3.77, 3.80, 3.86 (1956). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. The Veterans Claims Assistance Act As an initial matter with respect to whether the VA has met the notice and duty to assist provisions under the Veterans Claims Assistance Act ("VCAA"), the VCAA and its implementing regulations do not expressly indicate whether such provisions apply to motions alleging CUE in prior final decisions of the Board. However, the Court has held that, "as a matter of law, the VCAA is inapplicable to CUE claims." Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the duties specified in the VCAA are not applicable to allegations of CUE in a prior Board decision). Thus, given the nature of a motion to revise an earlier decision based upon CUE, no notification as to additional evidentiary development of the record is at issue, since the evaluation of such a motion is based upon the record as it was constituted at the time of the decision as to which revision is sought. B. Law and Analysis The veteran and his attorney essentially contend that the BVA decision dated September 3, 1957 was clearly and unmistakably erroneous in not granting service connection for residuals of a back injury. As discussed above, the Board denied the veteran's CUE claim in a decision dated in March 2005 and the veteran appealed this decision to the United States Court of Appeals for Veterans Claims (the "Court"). The Court affirmed the Board's decision in terms of (1) its reasons and bases that there was a legally sufficient basis for the 1957 Board decision and (2) that the Board did not err by not addressing the presumption of soundness. However, the Court remanded the Board's decision to address the veteran's contention that the 1957 Board misapplied the law in terms of the presumption of service connection for chronic diseases diagnosed within one year of separation from service. See July 2007 CAVC memorandum opinion, p. 3. Therefore, this opinion focuses on the presumption of service connection for chronic diseases pursuant to VA regulations 38 C.F.R. §§ 3.77, 3.80 and 3.86 (1956) in effect at the time of the Board's September 3, 1957 decision and the application of these regulations to the veteran's back disorder claim. In preparing this decision, the Board observes for the record that neither the July 2007 CAVC memorandum opinion nor the March 2007 Brief from veteran's counsel sets forth the specific chronic disease upon which the veteran bases his CUE claim. Id.; March 2007 Brief of Appellant, pgs. 3, 7, 8-9. It appears, however, based upon the Court's reference to the Board's March 2005 decision, review of the Board's 2005 decision and review of the veteran's February 2005 CUE motion that the veteran relies upon the presumptive condition of arthritis in support of his claim. See July 2007 CAVC memorandum opinion, pgs. 1-2 ("The Board noted both of these issues, but fully addressed only the former, and failed to address the latter beyond noting it, . . ."); March 2005 BVA decision, p. 3 (the veteran's contentions regarding CUE were discussed, to include the presumptive disability of arthritis); February 2005 CUE motion, p. 4 (the veteran's representative generally discussed the VA regulations pertaining to chronic conditions, and specifically noted the condition of arthritis). Since a review of the medical evidence does not appear to indicate that any of the other chronic conditions for which presumptive service connection is available are applicable to this claim, the Board proceeds to analyze the veteran's assertion of CUE on the basis that the Board misapplied the law in terms of the presumption of service connection for chronic diseases as it pertains to the chronic disorder of arthritis. Under 38 U.S.C.A. § 7111 (West 2002 & Supp. 2006), the Board has been granted the authority to revise a prior Board decision on the grounds of CUE. A claim in which review is requested based on CUE in a Board decision may be filed at any time after the underlying decision is rendered. Pursuant to VAOPGCPREC 1-98 (Jan. 13, 1998), the Board's authority applies to any claim pending on or filed after November 21, 1997, the date of enactment of the statute. 38 C.F.R. § 20.1400 (2007). 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 2002); 38 C.F.R. § 20.1400 (2007). CUE is defined as: 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)(2007). 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. See 38 C.F.R. § 20.1403(c)(2007). 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 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. See 38 C.F.R. § 20.1403(d) (2007). 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)(2007). Prior decisions issued by the Court on the issue of CUE in an RO rating decision provide guidance 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. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). 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). "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). Prior to deciding whether a decision actually involves CUE, the Board would normally determine whether, as a threshold matter, the veteran has pled CUE with the specificity required by regulation. See 66 Fed. Reg. 35,902-35,903 (July 10, 2001); 67 Fed. Reg. 46,869-46,870 (July 17, 2002) (codified as amended at 38 C.F.R. § 20.1404). However, in light of the fact that the veteran's CUE claim in this case has been evaluated by the Court, and the Court remanded the claim and directed the Board to analyze the veteran's contention that the 1957 Board misapplied the law in terms of the presumption of service connection for chronic diseases, the Board finds the veteran's CUE motion sufficient to proceed to the merits of the issue. See July 2007 CAVC memorandum opinion. In terms of the evidence of record, the Board observes that the RO granted the veteran service connection for residuals of a lumbar disc injury (hereinafter referred to as a "low back disorder") in a September 2003 rating decision after the Board reopened and granted the veteran's claim on appeal. See September 2003 Board decision. In an April 2004 letter, the veteran submitted a motion for revision of the September 3, 1957 on the basis that the majority of the evidence considered by the Board in its September 2003 decision was the same evidence considered at the time of the September 1957 BVA decision. The veteran asserted that at the time of the earlier Board decision, he submitted evidence showing treatment within five days of being discharged from service, submitted sworn statements from individuals who witnessed his condition during service and medical evidence of treatment following discharge from service. He maintained that the only different evidence submitted in connection with his request to reopen his claim in 2000 was a current assessment of the same condition he filed for in 1957. In a letter dated in April 2004, the Board acknowledged receipt of the veteran's motion for revision of the September 3, 1957 decision and provided his representative an opportunity to submit a relevant response or to review the claims file prior to filing a response. The representative responded by letter dated in February 2005. Therein, the representative alleged (among other things) that the September 1957 Board did not apply the presumption of service connection for chronic diseases diagnosed within one year of separation from service to the claim then at issue. See February 2005 motion for revision, p. 4. The representative explained that, at that time, there was medical evidence of record clearly reflecting that (1) the veteran experienced a back injury in service, (2) had treatment and a diagnosis immediately following discharge from service and (3) had a currently diagnosed service-connected back condition. Id. Thereafter, the representative argued that service connection was warranted for arthritis as a presumptive disability. Id. The Board acknowledges the veteran's assertions, but for the reasons explained below, finds that the correct facts, as they were known at that time, were before the Board on September 3, 1957, and on that date, the Board correctly applied the statutory and regulatory provisions in existence at that time such that the outcome of the claim would not have been manifestly different. Specifically, the Board observes that when it rendered its decision on September 3, 1957, the claims file consisted of the veteran's service medical records, statements from service comrades, and statements from private physicians. In the Board's September 1957 decision, it was noted that the veteran's service medical records did not disclose an injury to the veteran's back or treatment for a back disability in service; and that no history of a back injury or back disability was reported at the time of the veteran's physical examination performed in connection with his separation from service. The Board also noted that statements from service comrades were to the effect that the veteran did indeed injure his back and leg in the spring of 1944, and that he received treatment for the injury during service. Statements from private physicians, including a statement from the wife of a chiropractor, reflected that the veteran received treatment for his back within days of his separation from service and that the veteran had undergone surgery for a ruptured disc many years following separation from service. A November 1956 statement from L.L., M.D., relates that he first saw the veteran for back complaints in 1948, three years after the veteran's discharge from service. The record also contained a letter from F.B., M.D., which reflected the doctor's opinion that the veteran's ruptured disc found and removed at the operation in February 1956 was undoubtedly the cause of the veteran's complaints, dating back to the spring of 1944. Neither the veteran, nor his attorney, argues that the factual record available to the Board on September 3, 1957 was either incomplete or incorrect. Accordingly, the veteran's motion for revision is not sustainable on the basis that the correct facts, as known on September 3, 1957, were not before the Board. At this point, the Board would note that the law pertaining to granting service connection based upon the presumption of service connection for certain chronic diseases manifested within one year of separation from service to a specified degree of disability is substantially similar to the law currently in effect. See 38 C.F.R. §§ 3.307, 3.309 (2007); 38 C.F.R. §§ 3.77, 3.80, 3.86 (1956). In this regard, the Board observes that pursuant to the presumptive regulations, arthritis is considered a chronic disease for which service connection may be granted if the evidence reveals that this disorder manifested to a compensable degree within one year of separation from service. Id. Ruptured intervertebral discs were not included within the list of chronic diseases for which service connection could be presumably granted in 1957, nor is it provided in the regulation as drafted to date. Id. In its September 1957 decision, the Board did not cite the presumption of service connection for certain chronic diseases. However, it addressed, albeit indirectly, this presumption by making findings that would be relevant thereto. Specifically, the Board discussed the veteran's service medical records in that they essentially did not (1) document the veteran's back injury, (2) show treatment related to the back injury, (3) reference complaints or problems associated with the veteran's back during the remainder of the veteran's period of service, (4) reveal the presence of a back disability at the time of the veteran's November 1945 service separation examination or (5) show a diagnosis of a ruptured intervertebral disc until January 1956, over ten (10) years after the veteran separated from service. In addition, a review of the September 1957 decision reveals that the Board considered evidence indicating that the veteran received some medical treatment for back problems in the months after his separation from service in the form of a statement from the wife of the veteran's chiropractor. In that statement, the chiropractor's wife reported that her husband treated the veteran for a back injury three times during November 1945 and December 1945; and that the veteran received additional treatment from her husband on various dates throughout 1946. See March 1957 statement from Mrs. F.M. However, lacking from Mrs. F.M.'s statement is reference to a diagnosis of arthritis in 1945 or 1946; and the medical records upon which Mrs. F.M. based her statement are not contained within the claims file. In addition, an April 1957 letter from the veteran reported that he did not have x-rays taken in conjunction with his chiropractic treatment; and that he was told by Dr. M. that he "had a vertabrae out of place at that time." See April 1957 statement in support of claim. Based upon the above-referenced evidence, it is logical to conclude that the Board considered but determined that the presumptive disorder of arthritis was not applicable in this case since the veteran's only reported diagnosis in 1945/1946 was that of an intervertebral disc problem. Additional evidence considered by the Board that supported this conclusion consists of medical notes provided by L.L., M.D. that reported the veteran's back was x-rayed in 1956 and this x-ray was found to be negative. See November 1956 medical records of L.L., M.D.; see also April 1957 statement from the veteran. The Board also reviewed evidence pertaining to the veteran's 1956 myelogram that revealed only the presence of a prolapsed intervertebral disc, without reference of a diagnosis of arthritis. Id.; August 1956 letter from F.B., M.D. In light of the lack of medical evidence in 1957 indicating that the veteran had been diagnosed with arthritis manifest to a compensable degree within one year of service discharge, it is clear that the Board considered but determined that explicit consideration of the presumption of service connection for arthritis as a chronic condition pursuant to 38 C.F.R. §§ 3.80, 3.86 (1956) was not warranted. The Board does not find that, in concluding the foregoing, it committed CUE. The Board simply weighed the evidence pertaining to the diagnosis of a ruptured intervertebral disc with the absence of evidence indicating that the veteran had arthritis and drew its own conclusion that the veteran did not have a presumptive disorder that could be service connected. Thus, the 1957 Board essentially found that the presumption of service connection for chronic conditions was not applicable in this case and as such, an explicit discussion of such provisions was unnecessary. Accordingly, the Board presently concludes that the September 1957 Board decision was not clearly and unmistakably erroneous in denying service connection for a low back disorder. In making this decision, the Board acknowledges that its findings as they related to the presumption of service connection for certain chronic conditions were not expressly and comprehensively articulated in the September 3, 1957 decision. However, the brief synopsis of facts set forth above clearly reflects that the Board considered and weighed the evidence before concluding that the veteran's diagnosed low back disorder did not fall within the application of 38 C.F.R. § 3.80 and 38 C.F.R. § 3.86 (1956). As such, the Board's failure to articulate its consideration of the presumption of service connection for certain chronic conditions does not constitute CUE requiring revision of the September 3, 1957 decision. Therefore, based on the Board's findings explained above, the Board concludes that its September 3, 1957 decision, in which it denied service connection for residuals of a back injury, does not involve CUE. The veteran's claim for a revision of that decision on this basis must therefore be denied. ORDER Clear and unmistakable error (CUE) not having been shown, the veteran's motion for revision of the Board's September 3, 1957 decision is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs