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