Citation Nr: 0813997 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-41 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether a July 1962 rating decision that denied service connection for a low back disability contained clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from September 1960 to January 1962. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that found that the July 1962 rating decision denying service connection for a low back disability was not clearly and unmistakably erroneous. In November 2007 the veteran testified before the Board at a hearing that was held via videoconference from the RO. In November 2007 testimony before the Board, the veteran reiterated his contention as to his entitlement to an earlier effective date for the award of a 100 percent disability rating for his service-connected low back disability. In a 2002 decision, the Board denied the veteran's claim of entitlement to an earlier effective date for the award of a 100 percent disability rating for his service-connected low back disability. The veteran received notice of this decision and filed an appeal with the Court of Appeals for Veterans Claims. However, such appeal was dismissed and the Board denial remains final. Accordingly, this issue is not presently before the Board. See 38 C.F.R. § 20.1100 (2007). The Board notes that at the November 2007 hearing, the veteran stated that he would submit to VA evidence demonstrating that the proper facts were not considered at the time of the July 1962 decision. The record was held open for 60 days, in order to give the veteran the opportunity to submit such evidence. While the veteran did submit additional evidence to VA, he did not submit the evidence he specifically referenced regarding the circumstances of the April 1962 examination. In this regard, it is noted that the veteran has an obligation to assist in the adjudication of his claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). No further development is required under these circumstances. FINDINGS OF FACT 1. In a July 1962 rating decision, the RO denied entitlement to service connection for a low back disability because there was no current diagnosis of a low back disability. The veteran was notified of that decision and he did not file an appeal. 2. With respect to the July 1962 rating decision, the correct facts as known at that time were before the adjudicators, the law then in effect was correctly applied, and the decision did not contain an undebatable error that was outcome determinative. CONCLUSION OF LAW The July 1962 rating decision that denied entitlement to service connection for a low back disability was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 310 (West 1958 & Supp. 1962); 7105 (West 2002); 38 C.F.R. §§ 3.63(a) (1956 & Supp. 1962); 3.104, 3.105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Clear and Unmistakable Error The veteran argues that the July 1962 rating decision that denied service connection for a low back disability was clearly and unmistakably erroneous. In essence, he argues that the RO erroneously failed to consider in-service findings of a low back injury, and failed to assist him in obtaining evidence necessary to establish entitlement to service connection. Under the provisions of 38 C.F.R. § 3.105(a) (2007), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). However, if the evidence establishes CUE, the prior decision will be reversed and amended. A determination that a prior determination involved CUE involves the following considerations: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). CUE 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. 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 (1993). A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). Mere disagreement with how the RO evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A decision regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. Porter v. Brown, 5 Vet. App. 233 (1993). Here, the July 1962 rating decision being challenged on the basis of CUE considered the veteran's service medical records and an April 1962 report of special orthopedic examination. The veteran's service medical records showed he that sustained a low back injury in May 1961 as a result of being run over by a Jeep while in a sleeping bag. X-ray examination of his back was negative for evidence of fractures. He was diagnosed with a strain of the muscles of the lumbosacral region, and placed on a limited duty profile. Service medical records dated from May 1961 to July 1961 show that the veteran continued to complain of low back pain. In July 1961 he was hospitalized for a period of approximately four weeks at Madigan General Hospital in Tacoma, Washington, for treatment of sacroiliac strain. During his period of hospitalization it was determined that surgical treatment was unnecessary. Physical examination prior to his discharge from service did not involve examination of the back. Shortly following separation from service, the veteran filed a claim for service connection for a low back disability. On VA examination in April 1962, the veteran reported a history of having injured his back as a result of being run over by a Jeep. He stated that he was initially treated as an outpatient, but was later hospitalized for additional treatment. He stated that he was currently experiencing pain in his lumbosacral area. Physical examination of the low back revealed forward flexion, hyperextension, and lateral bending that were felt to be limited to about one-half of the normal range, although it was noted to be likely that this restriction was voluntary. X-ray examination of the low back was normal. The diagnosis was "no diagnosis made." Again, the question for consideration at the present time is whether the July 1962 rating decision contained CUE. As noted previously, one means of establishing CUE is to demonstrate that the correct facts, as they were known at the time, were not before the adjudicator at the time of the final decision being challenged. See Russell v. Principi, 310, 313 (1992). In denying the low back claim in July 1962 rating decision, the RO stated that records showed treatment for a low back injury in service, but that a post-service VA examination was negative. The RO reasoned that the veteran had injured his low back during service but that this injury had been acute and transitory and had resolved without residual disability. The Board finds that the discussion of facts in the July 1962 rating decision clearly establishes that the circumstances of the veteran's service were accurately understood by the adjudicators. While the rating decision references a history of an injury sustained in 1951, this is clearly a typographical error, as the rating decision also references the veteran's dates of active service, from September 1960 to January 1962. Therefore, the correct facts, as known at the time, were correctly before the adjudicators and a finding of CUE cannot be established on this basis. Again, CUE can also be established by showing that the law as then in effect was misapplied. The law that was in effect in July 1962 stated that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct. 38 U.S.C. § 310 (West 1958 & Supp. 1962). The law also provided that, for the purposes of § 310, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 311 (1958 & Supp. 1962). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.63(a) (1956). The regulations also stated that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish pre-service existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. 38 C.F.R. § 3.63(f) (1956). A review of the record here does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant in 1962. On the basis of the evidence associated with the claims folder in July 1962, the Board cannot conclude that the RO decision was clearly and unmistakably erroneous. While the service medical records demonstrate a low back injury, the April 1962 post-service examination did not diagnose any low back disability. Therefore, it is found that reasonable minds could differ as to whether a chronic low back disorder had been incurred during active service. Hence, the relationship between the low back disorder and active service was open to debate, precluding a finding of CUE. Indeed, a CUE claim cannot succeed unless the error compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). The present case does not compel that conclusion. The Board notes that, after the July 1962 rating decision, the veteran sought to reopen the claim with additional medical evidence showing diagnoses of a low back disability related to the in-service injury. However, the post-July 1962 evidence was not part of the record at the time of the July 1962 rating decision. Therefore, it can have no bearing on the veteran's claim of CUE in the July 1962 rating decision. The veteran contends that the RO's failure to assist in the development of his claim in connection with the July 1962 rating decision rendered that decision clearly and unmistakably erroneous. Specifically, the veteran asserts that he did not in fact undergo VA examination in April 1962. He further asserts that even if the examination was conducted, the results of the examination were inadequate because the veteran's service records were not available for review at the time of the examination. He asserts that had he undergone examination in conjunction with his 1962 claim, and had the examiner been able to review his service records, there would have been objective evidence of a low back disability, entitling him to service connection. First, in addressing the veteran's contention that he did not in fact undergo examination in April 1962, the record reflects that the veteran was scheduled for a special orthopedic examination in April 1962, and both the April 1962 report of examination and the May 1962 report of X-ray examination of the lumbar spine are labeled with the veteran's name and his claim number. While the veteran asserts that the labeling of these reports of examination with his name and claim number was erroneous, there is no evidence demonstrating that it was not the veteran who underwent examination. Accordingly, the Board finds no merit in the veteran's contention that it was not he who underwent examination. Further, even if the veteran did not undergo VA examination, a failure in the duty to assist cannot give rise to CUE; nor does it result in grave procedural error so as to vitiate the finality of a prior, final decision. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Based on the above, the veteran's argument that CUE should be found based on a failure in the duty to assist with regard to the scheduling of an examination is unavailing. In addressing the veteran's contention that the examination was inadequate because his service records were not available for review at the time of the examination, this argument must also fail. First, it has not been shown that, if further development had been conducted at the time, the additional evidence added to the record would have been unquestionably provided a basis for a grant of the benefit sought. More significantly, however, it is observed that an inadequate examination amounts to nothing more than a breach of the duty to assist. Thus, even if the examination was inadequate, because a failure in the duty to assist cannot give rise to CUE nor result in grave procedural error so as to vitiate the finality of a prior, final decision, such alleged inadequacy cannot serve as a basis for a finding of CUE. Cook, 318 F.3d 1334. The veteran additionally asserts that at the time the July 1962 decision was rendered, the RO did not have before it his entire service medical records. He asserts that the failure to obtain his service medical records prior to rendering a decision constituted grave procedural error so as to vitiate the finality of the July 1962 decision. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). The record, however, reflects that all service medical records were conveyed to the New Orleans, Louisiana Regional Office prior to the rendering of the decision. Specifically, the record reflects that in June 1962 the Seattle, Washington Regional Office, where the veteran originally filed his claim, requested the return of records lent to the Army Records Center. It is then shown that records were received from the Army Records Center and that the veteran's service medical records were transferred to the New Orleans, Louisiana Regional Office in June and July 1962, prior to the July 1962 decision. Based on the foregoing, there is no evidence in this case to rebut this presumption of regularity. Ashley v. Derwinksi, 2 Vet. App. 62, 64 (1992) (the "presumption of regularity" applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed that they have properly discharged their official duties); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994). Given that the record clearly demonstrates the chain of custody of the veteran's records, and that they were received at the New Orleans, Louisiana Regional Office prior to the July 1962 decision, the Board finds that there was in this case no grave procedural error so as to vitiate the finality of the July 1962 decision. See Hayre, 188 F.3d 1327. Moreover, the Board finds that even if the service medical records were not before the RO at the time the July 1962 decision was rendered, this failure would not amount to grave procedural error, vitiating the finality of the 1962 decision, as the claim was denied based upon a lack of a current diagnosis, rather than upon a lack of a nexus to service. In making this argument, the veteran is confusing an incomplete record with an incorrect record. Only the latter can serve as a basis for a finding of CUE. In sum, the Board concludes that the July 1962 rating decision that denied service connection for a low back disability did not contain CUE. Duties to Notify and Assist the Appellant The notice and duty to assist provisions of the law and regulations are not applicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165, 179 (2001). Therefore, discussion of the notice provisions in this case is not required. 38 U.S.C.A. §§ 5109A(a), 7111(a) (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2007). ORDER The July 1962 rating decision was not clearly and unmistakably erroneous in denying service connection for a low back disability. The appeal is denied. ____________________________________________ Eric S. Leboff Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs