Citation Nr: 1307450 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-22 802A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the July 7, 1975 decision of the Board of Veterans' Appeals (Board), which denied entitlement to service connection for pes planus. REPRESENTATION Moving party represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The moving party is a veteran who served on active duty from October 1973 to December 1973. This matter comes before the Board as an original action on the motion of the moving party to reverse or revise, on the basis of CUE, a Board decision promulgated on July 7, 1975, in which the Board denied a claim for entitlement to service connection for pes planus. FINDING OF FACT The July 7, 1975 Board decision was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied. CONCLUSION OF LAW Clear and unmistakable error is not shown in the July 7, 1975 Board decision. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court) held in part that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions." See Livesay, 15 Vet. App. at 179. It was observed that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging such error is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant," as defined by 38 U.S.C.A. § 5100 (West 2002), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. Based on the precedential decision of the Court in Livesay, the Board concludes that the moving party's CUE claim is not subject to the provisions of the VCAA. The Board notes that the moving party and his attorney have been accorded sufficient opportunity to present his contentions. Significantly, a December 2012 letter from the Board informed the Veteran's attorney that he may request to review the claims file and/or file a relevant response. He did not respond to the Board's letter. There is no indication that either the Veteran or his attorney has further argument to present. II. Merits of the Claim The moving party asserts that there was CUE in the July 7, 1975 Board decision denying entitlement to service connection for pes planus. Review of the record reflects that the moving party did not appeal the July 7, 1975 Board decision. Accordingly, it became final. See 38 C.F.R. § 20.1100(a) (2012). There are two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). CUE is 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. See, e.g., Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (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 the time were incorrectly applied; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra. The Board has original jurisdiction to consider motions for revision of prior Board decisions. Motions should be filed at the Board, but requests filed elsewhere within VA and transmitted to the Board shall be treated as if filed at the Board. See 38 C.F.R. § 20.140 (c), (d) (2012). The regulations codify the current requirements for a CUE motion that the Court has defined for motions of CUE in Board decisions as: 1. 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. See 38 C.F.R. § 20.1403(a) (2012). 2. 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. See 38 C.F.R. § 20.1403(a) (2012) 3. It is 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. See 38 C.F.R. § 20.1403 (c) (2012). Additionally, 38 C.F.R. § 20.1403(d) gives examples of situations that are not CUE. CUE is not a: 1. Changed medical diagnosis. 2. Failure to fulfill the duty to assist. 3. Disagreement as to how the facts were weighed or evaluated. 4. Change in interpretation of a statute or regulation. See 38 C.F.R. § 20.1403(d) (2012). 38 C.F.R. § 20.1403(c) also indicates that, where it is not absolutely clear that a different result would have ensued, but for the error, the error complained of cannot be CUE. No new evidence will be considered, 38 C.F.R. § 20.1405(b), and the law precludes remands or other referral for the purpose of deciding the motion. See 38 U.S.C.A. § 7111(e) (West 2002); 38 C.F.R. § 20.1405(b) (2012). The Board's consideration of a CUE motion must be based on the record that existed when the prior decision was made, unless the Board decision was decided on or after July 21, 1992. See 38 C.F.R. § 20.1403(b) (2012). In those cases, the record technically includes matter possessed by VA not later than 90 days before the file was transferred to the Board, provided that the documents could reasonably be expected to be part of the record. See 38 C.F.R. § 20.1403(b)(2) (2012). 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 CUE. See 38 C.F.R. § 20.1403(c) (2012). The benefit of the doubt provisions of 38 U.S.C.A. § 5107(b) are inapplicable in CUE. See 38 C.F.R. § 20.1411(a) (2012). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. The essence of the Veteran's argument is that the Board failed to adequately rebut the presumption of soundness and the presumption of aggravation with clear and unmistakable evidence. Specifically, the Veteran argues that the Board's decision was not supported by clear and unmistakable evidence that his pes planus preexisted service and was not aggravated in service. Upon review of the July 1975 decision, the Board finds that the allegation is not supported. A review of the Veteran's service treatment records shows that the Veteran's entrance examination showed normal feet and his entrance report of medical history was negative for any complaints and specifically denied any foot trouble. Approximately one month after entrance to active duty, a service treatment record shows the Veteran's complaints of right foot pain in the arch and the top of the metatarsals. He was diagnosed with bilateral severe pes planus, third degree, symptomatic and referred for Medical Board proceedings. An early November 1973 physical profile record indicated that the condition was expected to be considered temporary pending the Medical Board evaluation. At his late November 1973 Medical Board proceedings, the Veteran's pes planus was unanimously found to have existed prior to entry on active duty and not been aggravated by active duty. His third degree pes planus was considered congenital and aggravated by the rigors of basic combat training. The Medical Board examination noted his very low foot structure and concluded that the Veteran was probably erroneously inducted and that his condition was not aggravated by service. The Veteran was not afforded a VA examination prior to the July 1975 Board decision. He did, however, submit two private treatment records dated in July 1974 and September 1974. The July 1974 record noted the Veteran's complaints of foot pain and diagnosed him with severe and symptomatic pes planus. The September 1974 indicated that the only objective sign of the Veteran's pes planus was the physical deformity and that his complaints of pain were only subjective symptoms. Neither record indicates whether the Veteran's pes planus preexisted service or whether it was aggravated by service. At the time of the July 1975 Board decision, applicable law provided that service connection was to be granted for a disability resulting from disease or injury incurred in or aggravated by wartime service. See 38 U.S.C. § 310 (West 1974) [now 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012)]. At this juncture, the Board notes that the Veteran's Motion For CUE erroneously cites to 38 U.S.C. § 311, which is the companion section extant in the at the time for peacetime service. In any case, a veteran who served during a period of war or during peacetime service after December 31, 1946, was presumed in sound condition except for defects noted when examined and accepted for service. The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 331, 337 (West 1974) [now 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012)]. The implementing regulation provided that a veteran will be considered have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto. See 38 C.F.R. § 3.304(b) (1974). The regulation did not contain any mention of a requirement that clear and unmistakable evidence demonstrate that the disorder was not aggravated in order to rebut the presumption of soundness. The Board notes that in a precedent opinion which came many years after the Board decision in question, the VA General Counsel concluded that 38 C.F.R. § 3.304(b) conflicted with 38 U.S.C.A. § 1111, and that the regulation was therefore invalid. See VAOPGCPREC 3-2003 (2003). The United States Court of Appeals for the Federal Circuit (Federal Circuit) adopted the General Counsel's position. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Thus, under current law, the presumption of soundness in the Veteran's case is rebutted only if there is clear and unmistakable evidence that the disease in question existed prior to service and if there is clear and unmistakable evidence that any pre-existing condition was not aggravated by service. However, in evaluating the CUE claim, the Board must consider the law extant at the time of the July 1975 rating decision. See Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005) (the holding in Wagner, pertaining to a change in the interpretation of 38 U.S.C. § 1111 (formerly 38 U.S.C. § 311), cannot give rise to a finding of CUE in a decision that was final at the time of the new interpretation). A preexisting injury or disease was considered to have been aggravated by active service, where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. See 38 U.S.C. § 353 (West 1974) [now 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012]; 38 C.F.R. § 3.306(a) (1974). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 353 (West 1974) [now 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012)]; 38 C.F.R. § 3.306(b) (1974). As noted above, the moving party has argued that the Board did not establish by clear and unmistakable evidence that his pes planus preexisted service or that, if his pes planus did preexist service, it was not aggravated by service. The July 1975 Board decision concluded that the Veteran's pes planus preexisted service, and did not undergo a chronic change in underlying pathology during service. The Board referenced the Medical Board's finding that the Veteran's pes planus was congenital and further concluded that, given the short period of time between the Veteran's induction and foot complaints and the absence of any intercurrent injury, it was not probably that his feet underwent any basic structural changes. Relying on "accepted medical principles," the Board found the Veteran's pes planus must have preexisted his brief period of service. Essentially, the Board found that the Medical Board's finding that pes planus preexisted service and the referenced accepted medical principles established by clear and unmistakable evidence that the Veteran's disability preexisted service. The Board further found that the Veteran's preexisting pes planus was not aggravated by service. Specifically, the Board concluded that his in-service symptoms of foot pain were merely a continuation of the underlying pathology that existed prior to service. Although he had not complained of symptoms prior to service, the Board found that the underlying pes planus disability or pathology was not aggravated in service. As the Veteran's bilateral foot symptoms occurred almost immediately upon reporting to basic training and there was no evidence of a worsening of the underlying pathology of pes planus, the Board found that all of the evidence of record pertaining to the manifestations of the Veteran's pes planus prior to, during, and subsequent to service did not show that the condition underwent an increase in severity in service. As there was no evidence of an increase in severity during service, aggravation could not be conceded under the law at the time and the claim was denied. A review of the evidence and the Board's July 1975 decision does not show that the decision was based on incorrect facts or an incorrect application of the law. The facts that the Board cited in its decision are consistent with the evidence associated with the claims file at the time of the decision. To the extent that the Veteran's attorney disagrees with the Board's July 1975 weighing or evaluating of these facts and finding that they constituted clear and unmistakable evidence, this cannot be grounds for a finding of CUE. See 38 C.F.R. § 20.1403(d)(3) (2012). Additionally, the law as it was interpreted at that time was correctly applied. The law did not allow for a finding of aggravation where there was no increase in the severity of the disability, nor did it require clear and unmistakable evidence of such a finding. To the extent that the Veteran's attorney now argues that the Board in 1975 should have applied the principles which were later set forth in a General Counsel opinion and Joyce v. Nicholson, 19 Vet. App 36 (2004), by making a finding regarding whether there was clear and unmistakable evidence that the disorder was not aggravated during service, the Board notes that change in interpretation of a statute or regulation also cannot constitute a basis for a finding of CUE. See 38 C.F.R. § 20.1403(d)(4) (2012). The Veteran's attorney's argument that Wagner and Joyce precedents, decided some 30 years after the July 1974 Board decision at issue, was not a reinterpretation of the law and mandate a favorable revision of that decision, is misplaced. The Federal circuit case of Jordan v. Nicholson, Supra, is on point, as it specifically held, in a case very similar to the matter at bar, that Wagner was a reinterpretation of the law. The Board, relying on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service, concluded that the medical evidence clear and unmistakable established that the Veteran's pes planus preexisted service and did not show an increase in severity during service. This was a correct application of the law (as it was then interpreted) to the correct facts and does not support a finding of CUE. Essentially, the legal arguments proffered by the moving party's attorney depend on factual findings that he assumes, but which are not clear from the record. In order to conform to his legal arguments, the evidence would have to be weighed differently. Such a disagreement as to how the facts were weighed or evaluated cannot be clear and unmistakable error. See 38 C.F.R. § 20.1403(d)(3) (2012). Consequently, the Board finds that the record at the time of the July 1975 Board decision presented facts that could be evaluated under the law and regulations in existence at that time in such a way as to support the denial of service connection for the Veteran's pes planus. Thus, there was no clear and unmistakable error in the July 1975 Board decision denying service connection for pes planus. Since there was no CUE in the July 1975 Board decision, the motion to revise that decision based on CUE must be denied. ORDER The motion asserting that there was clear and unmistakable error in the July 7, 1975 rating decision that denied entitlement to service connection for pes planus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs