Citation Nr: 1303306 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 11-14 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether there was clear and unmistakable error (CUE) in an April 1978 rating decision that denied entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In his May 2011 substantive appeal, the Veteran requested a Board hearing at the local RO. However, he subsequently withdrew this request in September 2011. A review of the Virtual VA claims processing system does not reveal any additional records pertinent to the appeal. The Board observes that after the most recent supplemental statement of the case was issued in April 2011, in conjunction with a motion to advance this claim on the docket, the Veteran submitted additional evidence. Nevertheless, given that under applicable regulations, the Board must only consider the evidence of record at the time of the rating decision to determine whether it contains CUE, this evidence is not pertinent to the claim and thus, waiver of RO consideration of this evidence is not necessary. 38 C.F.R. § 20.1304(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The April 1978 rating decision was consistent with and reasonably supported by the evidence then of record, and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome regarding the claim of entitlement to service connection for a seizure disorder. CONCLUSION OF LAW The April 1978 rating decision, which denied the Veteran's claim of entitlement to service connection for a seizure disorder, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1403 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act As a preliminary matter, the Board finds that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the Veteran's claim of CUE in the prior rating decision, as a matter of law. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). Analysis The Veteran contends that there was clear and unmistakable error in an April 28, 1978 rating decision. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The United States Court of Appeals for Veterans Claims has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The relevant laws and regulations in effect in 1978 with respect to award of service connection were essentially unchanged from those in effect at present. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an 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. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as brain tumors and organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Initially, the Board notes that in February 1990, 38 U.S.C.A. § 5104(b) was enacted which requires that RO decisions specify evidence considered and reasons for disposition. See also Crippen v. Brown, 9 Vet. App. 412 (1996). Prior to enactment of such regulation, the Court required that it be clear from the face of the RO decision that a particular piece of highly probative evidence had not been considered in the RO's adjudication of the case. See id, citing Eddy v. Brown, 9 Vet. App. 52, 58 (1996). In the case at hand, the requirement for a detailed statement of reasons and bases was not applicable at the time of the challenged rating decision. See, e.g., 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 the RO 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 rating board was presumed to have made the requisite findings under a presumption of validity). Because the RO had no obligation at the time of issuance of the April 1978 decision to recite the evidence considered, "[s]ilence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record." See id; see also Russell; and, Mason v. Brown, 8 Vet. App. 44 (1995). Additionally, a current provision of law not applicable at the time of the challenged decision may not form the basis for a CUE allegation. Id. In the instant case, the Veteran essentially argues that the RO did not properly weigh the evidence of record at the time of issuance of the rating decision in 1978, and that the RO relied on incomplete information. At the time of the issuance of the April 1978 rating decision, the pertinent evidence in the claims file consisted of service treatment records, the Veteran's February 1978 application for compensation, lay statements from friends and family members, a statement from his former employer, VA treatment records, and a March 1978 VA examination. The service treatment records are silent with respect to any seizure disorder although the records do document that in September 1970, the Veteran fractured the anterior wall of the front sinus, which was surgically corrected. A June 1971 discharge examination documented that there was paresthesia of the skin on the right from lateral area, but no other sequelae. In his 1978 claim, the Veteran claimed service connection for fracture of the anterior wall of the sinus and a brain tumor discovered in May 1975, which he asserted was caused by the fracture. The lay statements from friends and family members all report that after the accident where he fractured the anterior wall of his sinus, the Veteran began experiencing headaches, memory loss and rapid blinking as well as personality changes. The employer's statement indicated that the Veteran was employed for about a month at the end of 1974, but his employment was terminated due to loss of memory, severe headaches, and an inability to concentrate. VA treatment records showed that the Veteran was status post resection of frontal meningioma. The Board observes that additional VA treatment records were associated with the claims file after the April 1978 rating decision. Nevertheless, as VA treatment records are constructively of record, they must also be considered when determining whether there was CUE in the April 1978 rating decision. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). These records essentially showed that the Veteran underwent a right frontal craniotomy surgery to remove a frontal meningioma in June 1975 with subsequent radiation. The hospital report observed that the Veteran presented with a seven year history of headaches and at least a five year history of difficulty in remembering. The Veteran indicated that he first noticed headaches in 1968, but the condition had been diagnosed as sinus headaches. He also reported that while going through pilot training in service, he had difficulty remembering to do rudimentary tasks. One year prior to admission, he had hallucinations, extremely severe headache and what may have been sensory seizures in his extremities. However, importantly, nothing in these records clearly show that the Veteran's meningioma or seizure disorder manifested in service, to include due to the 1970 accident. The March 1978 VA examination showed that the Veteran was found to have a meningioma in 1975. He had three generalized seizures since then and was on medication, which controlled the seizures. He also reported losing scalp hair after radiation therapy, but denied any other medical symptoms. The examiner diagnosed baldness, secondary to radiation therapy; fracture, frontal bone, right, history of; meningioma, removal by craniotomy; and epilepsy, post surgical. A neuropsychiatric evaluation done in conjunction with the VA examination indicated that the Veteran reported that his neurosurgeon who operated on the meningioma speculated that it had been present for a long time and its growth stimulated by the head injury in service. The examiner noted that the claims file was not available for review, but records from that time could be obtained by the adjudicator. The impression was epilepsy related to post surgical scarring, causing seizure focus. However, the examiner indicated that this diagnosis could best be documented through reports by the treating physicians. There was no evidence of psychiatric abnormality or any history to suggest neurological deficits aside from reported seizures. This report showed a diagnosis of meningioma, removed by craniotomy, and epilepsy, post surgical. In the April 1978 rating decision, the RO granted service connection for right frontal bone fracture, but denied service connection for meningioma and the residual seizure disorder as there was no evidence that the tumor condition manifested within one year of discharge. While the Board acknowledges that the RO did not specifically refer to all of the applicable laws and regulations, the Board notes that the absence of a specific reference to, or failure to cite, a controlling regulation in a rating decision does not mean it was not considered. VAOPGCPREC 6-92 at para. 6 (Mar. 6, 1992). Failure to discuss regulations does not constitute CUE as there is nothing to suggest that, had there been a written discussion of such regulations, a different result would have ensued. Crippen, 9 Vet. App. at 421. In rendering the initial rating decision, the RO clearly relied on service and post service treatment records which showed no evidence of a meningioma or seizures in service or within one year of service. Rather, service treatment records were silent with respect to any brain tumors or seizures. The first evidence of a meningioma was in May 1975, which was found four years after the Veteran's discharge from service. Even considering the VA treatment records later associated with the claims file, there is nothing in these records to show unequivocally that the meningioma and seizures manifested in service. Although VA treatment records showed that the Veteran reported ongoing symptoms that began in service, there was no opinion that the meningioma manifested in service. The Board recognizes that the Veteran reported at the VA examination that his neurosurgeon had speculated that the meningioma had been present for a long time. However, again, when reviewing the actual clinical records, there is no clear opinion as to when the meningioma manifested. In sum, there was no competent medical evidence at that time linking the meningioma to service. Although the rating decision was not optimally comprehensive in its discussion, again, the Court has recognized that RO decisions issued prior to February 1990 may not be as thorough as those by today's standards. Accordingly based on the evidence of record, the Board is satisfied that the RO decision was a fair exercise in rating judgment. Although the Veteran contends that the evidence was adequate at this time for the grant of service connection and the error occurred by not so granting, for the above reasons, the Board cannot agree that CUE was committed. Based on the evidence at the time, there was no CUE. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Wilson v. West, 11 Vet. App. 383, 386 (1998)(a determination that there is CUE must be based on the record and law that existed at the time of the prior adjudication in question). Additionally, while the Veteran has also contended that due process was denied in failing to gather certain evidence, "(b)road-brush" allegations of "failure to follow the regulations" or "failure to give due process" are also insufficient to establish CUE. See Fugo, 6 Vet. App. at 44. In this vein, the Board also calls attention to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002), in which the United States Court of Appeals for the Federal Circuit emphasized that a purported 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. In sum, the Court has held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). In the course of the current appeal, the Veteran has also submitted additional lay evidence again documenting behavioral changes after the accident in service. He has also pointed to VA opinions, including a February 2007 VA opinion, a May 2007 VA examination and August 2010 opinion by a VA staff neurologist, which determined that the Veteran's meningioma and seizures were related to service. The Board recognizes that the February 2007 opinion was one of the bases for the ultimate grant of service connection for meningioma and seizure disorder in an April 2007 rating decision. Nevertheless, these opinions were not of record at the time of the April 1978 rating decision and, thus, cannot be the basis for finding CUE. In light of the foregoing, the Board concludes that the correct facts, as known at the time, were before VA adjudicators at the time of the April 1978 rating decision, and that the statutory and regulatory provisions extant at the time were correctly applied. The Board finds that there was no error which was undebatable and of the sort which, had it not been made would have manifestly changed the outcome at the time it was made. ORDER The April 1978 rating decision denying service connection for seizure disorder having not been shown to contain CUE, the appeal is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs