Citation Nr: 1304079 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-47 135A ) DATE ) ) THE ISSUE Whether an October 25, 2010 decision of the Board of Veterans' Appeals, which granted an earlier effective date of July 10, 2000 for the award of service connection for residuals of a right knee injury, should be revised or reversed on the grounds of clear and unmistakable error (CUE). (The issues of entitlement to service connection for a disability manifested by multiple swollen and painful joints, to include as due to herbicide exposure, and entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of a right knee injury are the subjects of a separate Board decision.) REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The moving party, the Veteran, served on active duty from September 1967 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 motion for revision or reversal of a Board decision dated October 25, 2010. See 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, et seq. All final Board decisions are subject to revision under 38 C.F.R. §§ 20.1400, et seq., except for decisions on issues which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have subsequently been decided by a court of competent jurisdiction. See 38 C.F.R. § 20.1400(b). Here, the Veteran submitted his motion to revise the October 25, 2010 Board decision shortly after the decision was issued. There is no indication, however, that he appealed the same Board decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran did appeal a Board decision to the Court, but it was a Board decision issued on May 14, 2009 pertaining to different issues. Thus, the October 25, 2010 Board decision is a final decision to which the provisions pertaining to motions to revise on the basis of CUE are applicable. FINDINGS OF FACT 1. On October 25, 2010, the Board issued a decision granting an earlier effective date of July 10, 2000 for the award of service connection for residuals of a right knee injury. 2. The October 25, 2010 Board decision was based on the law and evidence then of record and constituted a reasonable exercise of judgment. It is not shown to have been clearly and unmistakably erroneous. CONCLUSION OF LAW Clear and unmistakable error in the Board's October 25, 2010 decision, which granted an earlier effective date of July 10, 2000 for the award of service connection for residuals of a right knee injury, has not been established. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION By way of background, the Veteran filed an application for benefits in June 1972, which included a claim of service connection for a knee injury. A Department of Veterans Affairs (VA) Regional Office (RO) denied the claim by a rating decision dated in July 1972. In December 1981, the Veteran submitted another claim of service connection for a knee injury. The claim was denied by the RO in a January 1983 rating decision because new and material evidence had not been received, and the claimed disability was identified specifically as a right knee injury. The Veteran did not appeal the decision. Thereafter, on June 13, 1996, VA received a petition from the Veteran to reopen the previously denied claim of service connection for a knee injury. In a May 1997 rating decision, the RO denied the claim. The Veteran appealed the denial to the Board. By an October 1998 decision, the Board reopened the previously denied claim and characterized the claimed disability as a right knee disorder. After the reopened claim was remanded for additional development, the Board denied the claim in March 2000 on the grounds that it was not a well grounded claim. In August 2000, the Veteran submitted a petition to again reopen the claim of service connection for a right knee injury. By a November 2000 rating decision, the RO denied the claim because new and material evidence had not been received. After the Veteran appealed the denial, the Board reopened the previously denied claim in a June 2001 decision. At that time, the Board remanded the claim for additional development. The Board again remanded the claim in July 2004. In a March 2006 decision, the Board granted service connection for a right knee disorder. The RO implemented the Board's March 2006 award for service connection for a right knee disorder in a rating decision dated later that month, in which it characterized the disability as residuals of a right knee injury. The RO assigned a disability rating of 10 percent and an effective date of August 11, 2000 for the award. The Veteran, in part, appealed for the assignment of an earlier effective date for the award of service connection. On October 25, 2010, the Board issued a decision on the matter along with other claims that are not relevant to the present motion to revise. First, the Board determined that the Board's March 2000 denial of the claim of service connection for a right knee injury was essentially erased because the claim was denied on a "not-well-grounded" basis between July 14, 1999, and November 9, 2000. This was due to the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See VAOPGCPREC-03 2001 (discussing the readjudication of claims denied as not-well-grounded prior to the enactment of the VCAA). Based on this determination, the Board found that the Veteran's June 13, 1996 claim was a pending claim. The Board also found that there was no claim filed earlier than June 13, 1996 and after the January 1983 prior denial. The Board then noted that the effective date of an award of compensation is generally the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2009). The Board evaluated the evidence and found that, although the date of receipt of claim was June 13, 1996, the date entitlement arose was on July 10, 2000. The Board explained that July 10, 2000 was the date of a letter by Dr. R.M.F. who provided a medical opinion linking the Veteran's current right knee disorder to his military service. The Board therefore found that the criteria for service connection were first met on July 10, 2000 as the evidence of record that existed prior to Dr. R.M.F.'s letter did not sufficiently show such a link to service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (indicating that, in order to establish service connection, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability). Based on this analysis, the Board granted an effective date earlier than the August 11, 2000 date that the RO had set for the award of service connection for residuals of a right knee injury. The Board grated an effective date of July 10, 2000-the date of Dr. R.M.F.'s letter. As noted in the introduction, the October 25, 2010 decision of the Board is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2009). The Veteran and his representative contend that CUE exists in the October 25, 2010 Board decision. In the December 2010 motion to revise, and in an October 2012 brief by his representative, the Veteran asserts that the Board erred: when it did not accept lay statements in 1972 and 1982 that attested to firsthand knowledge of an in-service injury to the knee; when it improperly interpreted a November 1982 VA examination report; and when it improperly rejected the Veteran's lay statements linking his current disability to military service. Essentially, the Veteran contends that the Board erred by not applying the correct facts to the appropriate laws concerning the assignment of the effective date for the award of service connection for residuals of a right knee injury. Had the Board done so, the Veteran maintains that the result would have been different and the effective date for the award of service connection would have been set at least as early as June 13, 1996, which was the date of his claim to reopen. Motions for revision of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Rules of Practice of the Board at 38 C.F.R. Part 20. Clear and unmistakable error 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. 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. Review for CUE in a prior Board decision must be based on the record and law that existed when that decision was made. 38 C.F.R. § 20.1403. See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). 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 clear and unmistakable. 38 C.F.R. § 20.1403(c). The following are examples of situations that are not CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in the Board's decision; (2) the Secretary's failure to fulfill the duty to assist: and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board's decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). A motion for revision of a Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran, the name of the moving party if other than the veteran, the applicable VA file number, and the date of the Board's decision to which the motion relates. Motions which fail to comply with these requirements shall be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(a). As the moving party, the Veteran in this case has met the basic filing requirements of 38 C.F.R. § 20.1404(a). All of the requirements were met in the Veteran's December 2010 motion. The Veteran has also set forth a clear and specific allegation of CUE in the October 25, 2010 Board decision and has pleaded an error in applying facts to law with sufficient specificity to enable the Board to decide the motion to revise on the merits. In assigning the effective date for the award of service connection, the initial undertaking is to determine the date of claim. In the October 25, 2010 decision, the Board first properly found that the January 1983 rating decision was a final decision as the Veteran did not indicate disagreement with the decision within one year of notification of the denial. See 38 U.S.C.A. § 7105 (West 2002). Additionally, the Board properly applied the provisions of the VCAA and VAOPGCPREC-03 2001 when it determined that the March 2000 Board decision was not the last prior final denial due to the claim being denied on the basis of not-well-grounded. The Board notes that the provisions of 38 C.F.R. § 3.156(b) and (c) (2009) regarding the receipt of new and material evidence and service records are potentially applicable to determinations as to whether prior denials are final. Although these provisions were not expressly addressed in the October 25, 2010 decision, no error was committed because they were not applicable to the claim. No correspondence or evidence was received subsequent to the January 1983 decision until the June 13, 1996 claim to reopen; thus, there was no new and material evidence received within one year of the January 1983 denial. Additionally, although service records were received at a later date, they were duplicates of those already of record; thus, section 3.156(c) did not apply as well. In sum, the Board did not commit error in finding that the January 1983 decision was final and that June 13, 1996 was the proper date of receipt of the claim to reopen entitlement to service connection for a right knee injury. In view of the Veteran's contentions, he does not appear to generally dispute the determination that June 13, 1996 was the proper date of claim. Instead, he primarily asserts that the Board committed error in its analysis of the date entitlement arose. Based on a November 1982 VA examination report and the Veteran's seemingly credible lay statements, the Board found that two of the three elements of a service connection claim were substantiated as of June 13, 1996-the date of claim. These were elements pertaining to competent and credible evidence of a current disability and medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury. Essentially, the Board found that the evidence showed that the Veteran experienced an injury to his right knee during active service and that he had a current right knee disability as of the date of claim. However, the third element remained in question-competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. The Veteran contends that the November 1982 VA examination report shows the required link between his current right knee disability and his in-service injury. However, it was not an unreasonable application of law to facts by the Board to find that the November 1982 report did not constitute sufficient nexus evidence. The VA examiner physically examined the Veteran and provided a diagnosis of status post contusions, sprain right knee. Although the examiner noted the Veteran's reported history of falling on the right knee in approximately 1969, the examiner did not provide any opinion linking the two. In the October 25, 2010 decision, the Board clearly considered the November 1982 VA examination report in its analysis and it did not find it constituted the requisite nexus evidence. In doing so, the Board did not commit CUE. The Veteran essentially disagrees how the facts were weighed concerning the November 1982 VA examination report, which cannot equate to CUE. The Veteran's other two assertions of CUE both pertain to the Board's consideration of his lay statements. The Veteran maintains that he has repeatedly stated that his current right knee injury is related to service, even as early as his original claim in June 1972. While this may be the case, the Board acknowledged as much in the October 25, 2010 decision. The Board expressly considered the Veteran's own statements, theories, and opinions that linked his right knee disability to service. It was also acknowledged by the Board that the Veteran was competent to give evidence about what he experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). However, in this instance, the Board determined that the question of etiology of the current disability was a complex medical question and that the record did not show that the Veteran had the requisite medical experience or training necessary to opine on the complex medical question. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) (2009) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, the Board found that the Veteran's lay opinion were not competent as to etiology. The Board's determination in the October 25, 2010 decision that competent medical evidence was necessary to substantiate the nexus element of the service connection claim was not CUE because it was a reasonable application of law to facts. In the Veteran's case, the record does not reflect that the possible relationship between his current right knee disability and an in-service injury was discernible by a lay person. In fact, two competent medical professionals did not agree on the etiology, which supports the view that it was a complex question. In the July 2000 letter, Dr. R.M.F. opined that the Veteran's current right knee injuries were more likely than not related to the service injury he described. In contrast, an August 2004 VA examiner gave the opinion that it was not likely that the Veteran's current symptoms were related to a contusion or strain that occurred almost thirty-five years ago and that they were more likely than not a naturally occurring phenomenon. This difference in opinion by medical experts supports the Board's determination that the question of etiology was a complex medical question in the Veteran's case. In light of this information and evidence, the Board's finding that the third element of the service connection claim was not met until the July 10, 2000 letter from Dr. R.M.F. constituted a reasonable exercise of judgment because this was the earliest date that competent medical evidence linked the Veteran's current right knee disability to his in-service right knee injury. Consequently, the Board did not commit CUE in its determination of when entitlement arose for the Veteran's claim. The Veteran's assertions that the facts should have been weighed or evaluated differently do not amount to CUE. Furthermore, CUE was not committed when the Board assigned an effective date as of the date entitlement arose (July 10, 2000) rather than the date of receipt of claim (June 13, 1996) because the proper effective date was the later of those two dates. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2009). In view of the above information and evidence, the Board concludes that there was no CUE in the October 25, 2010 decision based on the Veteran's allegations. There was no error in the decision which would have manifestly changed the outcome. There was also no rare kind of error, to which reasonable minds could not differ, that would have led to a result manifestly different but for the error. See 38 C.F.R. § 20.1403. Lastly, the Board notes that the provisions of the VCAA are not applicable to motions to revise Board decisions. See Livesay v. Principi, 15 Vet. App. 165 (2001). In Livesay, the Court noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process. Because the moving party is not pursuing a claim for benefits, but rather is collaterally attacking a prior final decision, the duties to notify and assist as set forth in the VCAA are not applicable. 15 Vet. App. at 178-79. For the foregoing reasons, the Board does not find that the October 25, 2010 Board decision should be revised or reversed on the grounds of CUE. Because the Veteran submitted a specific allegation of CUE, a denial of the motion on the merits, rather than dismissal without prejudice, is appropriate. See Simmons v. Principi, 17 Vet. App. 104 (2003). ORDER The motion to revise or reverse an October 25, 2010 decision of the Board, which granted an earlier effective date of July 10, 2000 for the award of service connection for residuals of a right knee injury, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs