Citation Nr: 1307619 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-43 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether there was clear and unmistakable error (CUE) in a June 2002 rating decision that denied service connection for residuals of a fracture of the left patella with degenerative disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded CUE was not present in a June 2002 rating action that denied service connection for a left knee disability. FINDINGS OF FACT 1. By rating decision dated June 2002, the RO denied service connection for a left knee disability. 2. The June 2002 rating decision was supported by the evidence then of record. 3. There is no undebatable error of fact or law in the June 2002 rating decision. CONCLUSION OF LAW The June 2002 rating decision that denied service connection for residuals of a fracture of the left patella does not contain clear and unmistakable error. 38 C.F.R. § 3.105(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). With respect to the claim of CUE, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Livesay v. Principi, 15 Vet. App. 165 (2001) that the VCAA did not apply to motions for CUE. Analysis A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 U.S.C.A. § 7105 (West 2002). Pursuant to 38 C.F.R. § 3.105(a), previous determinations, which are final and binding, will be accepted as correct in the absence of clear and unmistakable error. Where the evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The service treatment records disclose the Veteran was seen in December 1986 for complaints of recurrent swellng in the left knee, especially after running. It was noted he had fallen on the left knee approximately six years earlier and was diagnosed with a fracture of the tibial tuberosity by the Veteran's description. He related his left patella became misshapen after the injury. He had been evaluated in Korea with a diagnosis of bipartite patella. X-rays of the left knee revealed early degenerative joint disease changes and an enlarged patella. The impression was probably early degenerative joint disease with inflammatory synovitis secondary to an old patella fracture. The Veteran was seen in the orthopedic clinic in February 1987. X-rays at that time showed calcification along the medial aspect of the proximal tibia and adjacent to the medial aspect of the medial femoral condyle, consistent with tendonus calcification, most likely from old trauma. In February 1987, a physical profile board issued a permanent profile allowing the Veteran to run at his own pace and for no more than two miles. The physical defect noted was recurrent left knee pain, secondary to an old injury (fracture of the patella), with degenerative joint disease. The Veteran submitted a claim for service connection for a left knee disability in February 2002. He referred to treatment in service, as well as treatment at a VA facility in February 2002. He acknowledged he had a preexisting left knee problem that became progressively worse during active duty. He stated degenerative joint disease developed and he was placed on limited duty. VA outpatient treatment records dated from 1998 to 2002 were associated with the claims folder. The clinical history noted when an X-ray study was done in February 2002 was that the Veteran had left knee pain and a history of surgery. A history of a patellar fracture was also noted. The X-rays demonstrated markedly advanced degenerative arthritic changes. By rating action dated June 2002, the RO denied the Veteran's claim for service connection for residuals of a fracture of the left patella. It was indicated a fractured patella was present prior to service and there was no objective evidence of worsening in service. Notice of this determination was sent to the Veteran's address of record, but was returned by the Post Office with an indication the Veteran had moved and left no address. The Post Office was unable to forward the letter. The Veteran asserts there was CUE in the June 2002 rating action in concluding that a preexisting left knee disability was not aggravated in service. He argues, in effect, that the presumption of soundness should have attached, and that clear and unmistakable evidence that the condition both preexisted service and was not aggravated by service was not shown by the evidence of record. In order to find that a rating action was clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time the rating was assigned was such that the only possible conclusion was that service connection for a left knee disability was warranted. CUE requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Such a conclusion cannot be made in this case. In Graves v. Brown, 6 Vet. App. 166 (1994), the Court described the high burden of proof required for a showing of CUE the definition it has provided for it in relevant case law: In order for there to be "clear and unmistakable error" under 38 C.F.R. § 3.105(d), there must have been an error in the prior adjudication of the claim. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Either the correct facts, as they were known at the time, were not before the adjudicator or the regulatory provisions extant at the time were incorrectly applied. Id., at 313. With regard to challenges to prior decisions by a claimant under 38 C.F.R. § 3.105(a), the Court held in Russell that a "clear and unmistakable error" must be the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. Id. "It must always be remembered that [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." Fugo v. Brown, 6 Vet. App. 40, 43 [1993]. Errors that are "clear and unmistakable" are undebatable; that is, reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Id. A determination that there was a "clear and unmistakable error" must be based on the record and the law that existed at the time of the prior decision of the agency of original jurisdiction or [Board], and subsequently developed evidence is not applicable. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Graves, 6 Vet. App. at 170-71. It appears the Veteran insists that the RO did not apply the correct legal standard in evaluating his claim. The record establishes, however, that the RO noted the Veteran's pre-service history, which he is competent to report. It further noted the absence of any treatment for his left knee for approximately 14 years following his discharge from service. Thus, it was concluded the condition had not been aggravated by service. In order to find CUE, the evidence must be undebatable. Such is not the case here. The evidence of record at the time of the June 2002 rating decision clearly established the Veteran had a preexisting left knee disorder. As noted above, the Veteran conceded this point on his application for service connection submitted in February 2002. This conclusion was also supported by the Veteran's in-service statements that he fell and injured his left knee before service. In addition, the RO noted the long gap between his separation from service and left knee complaints. Thus, the evidence of record at the time of the June 2002 rating decisions failed to undebatably establish there was an increase in severity of the preexisting condition during service, such that service connection should have been granted. In light of the above, the Board is, accordingly, constrained from finding that there was CUE in the June 2002 rating action. ORDER The June 2002 rating decision that denied service connection for a left knee disability did not contain CUE. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs