Citation Nr: 1301586 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-40 581A ) DATE ) ) THE ISSUE Whether the Board of Veterans' Appeals (Board) November 14, 1983 decision, which denied entitlement to service connection for ischial bursitis of the left hip, should be revised due to clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The moving party served on active duty from December 1966 to September 1970. This matter is before the Board in response to a motion for revision of a November 14, 1983 decision, in which the Board denied the moving party's claim of entitlement to service connection for ischial bursitis of the left hip. In March 2011, the Board notified the moving party that it had received his motion and granted him 30 days from the date of the letter to file a relevant response, including a request to review the claims file prior to filing a further response. The moving party was informed that if he did not respond within 30 days, the request for review would be referred to a Board member for a decision. The 30 day period lapsed without a response from the moving party. Accordingly, the motion is ready for further review. FINDINGS OF FACT 1. On November 14, 1983, the Board determined that the moving party was not entitled to service connection for ischial bursitis of the left hip. 2. The moving party has not established an error of fact or law in the Board's November 14, 1983 decision, that compels the conclusion that the moving party is entitled to service connection for ischial bursitis of the left hip. CONCLUSION OF LAW The criteria have not been met for revision of the Board's November 14, 1983 decision, such that service connection is warranted for ischial bursitis of the left hip. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Generally, VA has a statutory duty to notify the moving party of the information and evidence necessary to substantiate his claim and to assist him in the development of that claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). However, an allegation of CUE is fundamentally different from any other kind of action in the VA adjudicative process. An allegation of CUE is not a "claim," but rather a collateral attack on a final decision. It involves a legal challenge to a prior Board decision and does not involve acquiring or submitting any additional evidence. Therefore, VA's statutory duty to assist the moving party in the development of his claim is not applicable in the adjudication of a CUE motion. 38 C.F.R. § 1403(d)(2); see Livesay v. Principi, 15 Vet. App. 165, 178- 79 (2001). The Merits of the Moving Party's Motion The moving party argues that in November 1983, the Board committed CUE because there was no evidence to countervail a physician's opinion that left hip ischial bursitis was secondarily caused by a service-connected right shoulder disorder. After carefully considering the motion in light of the record and the applicable law, the Board finds that it did not commit CUE, and the motion will be denied. Prior to its evaluation of the motion, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38 of the United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit, as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court, as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration. Its decision must include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, as well as the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board has the authority to revise or reverse a prior Board decision on the grounds of CUE. 38 U.S.C.A. § 7111. The motion for such action may be filed at any time after the underlying decision is rendered. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400 . CUE is 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 cannot 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); see Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The error must be so egregious that had it not been made, it would have manifestly changed the outcome of the decision. If it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed clear and unmistakable. 38 C.F.R. § 20.1403(c) ; see Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993) . There is a three-prong test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable, that is the type which, had it not been made, would have manifestly changed the outcome of the decision; and; (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A claim of CUE is a collateral attack on an otherwise final decision. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). Because of the nature of the challenge to the decision, there is a presumption of validity which attaches to that final decision. When such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo at 44. Therefore, a moving party who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a moving party who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A disagreement with how the RO evaluated the facts is inadequate to raise a claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Similarly, the Court has held that the VA's breach of its duty to assist cannot form a basis for a claim of CUE. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000). Moreover, opinions from the Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid claim of CUE. Brewer v. West, 11 Vet. App. 228, 234 (1998). If the evidence establishes CUE, the prior decision must be reversed or revised, 38 U.S.C.A. § 7111(a), and the decision constituting the reversal or revision has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 7111(b). A review for CUE is based on the record and the law that existed at the time the decision was made. 38 C.F.R. § 1403(b)(1); 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). On November 14, 1983, the Board denied the moving party's original claim of entitlement to service connection for ischial bursitis of the left hip. In so doing, the Board noted the moving party's contentions that his disorder was proximately due to or the result of his service-connected residuals of a right shoulder injury. The Board stated, however, that the moving party had almost a full range of right shoulder motion which should not have caused him any functional problems. The Board further noted an October 1982 statement from a physician employed by the VA (then, Veteran's Administration) Rehabilitative Medicine Services, who reported in part that: 1. The moving party had service-connected right shoulder arthritis; 2. The moving party was instructed to avoid certain motions of the right arm in order to avoid pain and not accelerate the deterioration process of the right shoulder, and; 3. Due to that instruction, the moving party was to "do certain activities and motions left-handed" which caused the left hip bursitis. See Statement dated October 1, 1982. In 1983, as now, service connection connoted many factors but basically it meant that the facts, shown by evidence, established that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, had been aggravated therein. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there was required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity was established, there was no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology was required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity could be legitimately questioned. When the fact of chronicity in service was not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection could also be granted when the evidence shows that a particular disability was proximately due to or the result of a disability for which service connection had already been established. 38 C.F.R. § 3.310(a). In addition, service connection could be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease had been incurred in service. 38 C.F.R. § 3.303(d). The relevant evidence on file on November 14, 1983 consisted of the moving party's service treatment records, the reports of VA examinations performed in November 1979 and June 1982; records reflecting the moving party's VA treatment from December 1979 to September 1981; and the October 1, 1982 letter from the RMS physician. The service treatment records showed that the moving party had a right shoulder disorder for which service connection had been established, effective November 12, 1979. However, those records were negative for evidence of left hip bursitis. Such a disorder was not manifested until August 1981, when the moving party was treated by VA. As an initial matter, the requirement for the Board and the RO to provide a detailed statement of reasons and bases was not applicable at the time of the challenged decision. Natali v. Principi, 375 F.3d 1375 (Fed.Cir. 2004); Pierce v. Principi, 240 F.3d 1348 (Fed.Cir. 2001); Joyce v. Nicholson, 19 Vet. App. 36 (2005) (in general for the proposition that because the law prior to the enactment of the Veterans' Benefits Amendments of 1989 did not require VA to set forth in detail the factual bases for its decisions; nor provide in depth discussion of applicable law, the failure to do so was not clear and unmistakable legal error at the time of such decisions, and the adjudicators were presumed to have made the requisite findings under a presumption of validity). When the Board denied the claim in November 1983, it noted that it had considered the October 1982 medical opinion from the VA RMS physician, but that the evidence as a whole did not warrant service connection for left hip bursitis. The Board specifically noted that the moving party had recently undergone a right shoulder examination which demonstrated "almost full range of motion in his shoulder, which should not have caused him significant functional problems." (Italics added). Board decision, page 4. The Board then found the moving party's right shoulder, non-compensably disabling disorder was not likely to have impaired his movement. However, and apart from the medical evidence of record, the law applicable in 1983 provided that the Board was to consist of a Chairman, a Vice Chairman, associate members as may be found necessary, and such other professional, administrative, clerical, and stenographic personnel as are necessary in conducting hearings and considering and disposing of appeals properly before the Board. 38 U.S.C. § 4001(a) (1976). Among the principal functions of the Board was to evaluate the evidence of record, and enter decisions in writing on the questions presented on appeal. 38 C.F.R. § 19.111 (1983). The Chairman of the Board was then permitted to divide the Board into sections of three members. A section of the Board was to make a determination on any Board proceeding. 38 U.S.C. § 4002 (1976). The Board was to be bound in its decisions by VA regulations, instructions of the VA Administrator, and the precedent opinions of the chief VA law officer. 38 U.S.C. § 4004(c) (1976). One such directive allowed for a Board section member to be a physician. See Board of Veterans' Appeals Manual Number 1 (MBVA-1), Part I, paragraph 2.04(c). Unlike today's environment in which the expertise of a physician employed by the Board is entitled to no deference, that bar did not exist in 1983. Boyer v. Brown, 7 Vet. App. 549, 553 (1995) (the Board's use of its own medical judgment provided by the medical member of a panel was common practice prior to the decision by the United States Court of Appeals for Veterans Claims (Court) in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In Colvin, the Court banned that practice, holding that the Board could not substitute its own medical judgment for that of medical professionals. However, because that decision was subsequent to 1983, it is of no force or effect in the current determination. In 1983, the duties of the Board's Medical Members were set forth in MBVA -1, Part II, paragraph 2.04(c). It stated that the Medical Member was a Member of a Section of the Board who made determinations and entered decisions on all questions and motion on appeals involving claims for benefits under all laws administered by the VA; rendered advisory opinions to other Members or professional staff on medical problems within his/her specialized area of knowledge; and assisted in the orientation and training of Attorneys in forensic medical skills under the direction of the Chief Member. In the moving party's case, a Medical Doctor sat on the Board's November 1983 panel which denied the claim of entitlement to service connection for ischial bursitis of the left hip. The doctor reviewed the case and signed the decision. Given the reviewed law regarding the establishment and duties of a Board medical member, there has been no showing that the presumption of regularity that attaches to the performance of official duties by public officials should be overcome. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) ("There is a presumption of regularity that attaches to actions of public officials." citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14- 15 (1926)). The Court has applied the presumption of regularity to "all manner of VA processes and procedures." Id. at 220. It is evident that the Board medical member disagreed with the October 1982 opinion by the VA RMS physician that the Veteran's ischial bursitis of the left hip was secondary to his service-connected residuals of a right shoulder injury. In this regard, the Board decision cited the full range of right shoulder motion which should not have caused the moving party any functional problems. Indeed, the Board's doctor implicitly provided the countervailing evidence to deny the appeal. Such a procedure conformed to the practice of the Board in 1983 and was not forbidden by statute, regulation, instructions of the VA Administrator, or the precedent opinions of the chief VA law officer. Under such circumstances, the moving party's allegation of CUE, on the basis that there was no evidence to counter that of the rehabilitation physician's is without merit. The Board has also considered the moving party's citations from the Court's decisions in Joyce v. Nicholson, 19 Vet. App. 36, 41 (2005) and Sondel v. West, 13 Vet. App. 213, 216 (1999). In Joyce and Sondel, the Court stated that CUE could be based on a showing that there was no evidence before the RO that could have supported a denial of the claim on the merits. The moving party's contention is without merit. Both the Sondel and Joyce decisions noted that in the decisions challenged on the basis of CUE, there were regulatory directives existing at the time mandating that VA enter specific factual findings as to the presumptions of soundness and aggravation. Joyce, 19 Vet. App. at 41-51; and Sondel, 13 Vet. App. at 217-21; see Akins v. Derwinski, 1 Vet. App. 228 (1991). Such a regulatory provision mandating one or more specific factual and legal findings is not present here. Instead, this motion involves the question of secondary service connection. Moreover, contrary to the moving party's assertion, the October 1982 opinion of the Chief of the VA RMS was not the only medical opinion of record. In sum, the Board finds that on November 14, 1983, the correct facts, as they were known at the time, were before the Board and the statutory or regulatory provisions extant at that time were correctly applied. ORDER The motion to reverse or revise the Board's November 14, 1983 decision on the basis of CUE is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs