Citation Nr: 1310486 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 13-03 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the April 29, 2010, decision of the Board of Veterans' Appeals (Board) contained clear and unmistakable error (CUE). ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The moving party (the Veteran) had active military service from June 1959 to May 1960. This matter is currently before the Board of Veterans' Appeals (Board) on motion for revision or reversal on the grounds of clear and unmistakable error (CUE) in a April 29, 2010 Board decision that denied a petition to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction as well as entitlement to service connection for several other disorders. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In April 2010, the Board denied the Veteran's petition to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction as well as claims for entitlement to service connection for hypertension; an enlarged heart (cardiomegaly); angina, (also claimed as pain or pressure in the chest and palpitation or pounding heart); deep vein thrombosis (DVT) of the left leg (also claimed as cramps); an unspecified disorder manifested by excessive bleeding after injury; an unspecified disorder manifested by a reaction to serum, drugs, or medicine (unspecified), claimed due to service immunizations; chronic obstructive respiratory disease (COPD); chronic emphysema; prostatitis; an unspecified upper gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified liver disorder, claimed as secondary to prostatitis and alcohol; an unspecified lower gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified disorder manifested by dizziness and vertigo; an unspecified ear nose and throat (ENT) disorder; vascular and tension headaches; an unspecified venereal disease; and excessive alcohol consumption. 2. The correct facts, as they were known at that time, were before the Board on April 29, 2010, and on that date, the Board correctly applied the statutory and regulatory provisions in existence at that time such that the outcome of the claim would not have been manifestly different but for the error. CONCLUSION OF LAW The April 29, 2010 decision, in which the Board denied an application to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction as well as claims for entitlement to service connection for hypertension; an enlarged heart; angina; DVT of the left leg; an unspecified disorder manifested by excessive bleeding after injury; an unspecified disorder manifested by a reaction to serum, drugs, or medicine (unspecified), claimed due to service immunizations; COPD; chronic emphysema; prostatitis; an unspecified upper gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified liver disorder, claimed as secondary to prostatitis and alcohol; an unspecified lower gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified disorder manifested by dizziness and vertigo; an unspecified ENT disorder; vascular and tension headaches; an unspecified venereal disease; and excessive alcohol consumption, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404, 20.1409 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). An allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision. Thus, the provisions of the VCAA are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165 (2001) (an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process."). Moreover, as a CUE analysis depends upon the evidence and information of record at the time of the original decision, there is no assistance which can be provided at this time. No additions to the record may be considered. II. Law and Analysis A. Clear and Unmistakable Error The Veteran has alleged CUE in an April 2010 Board decision which, in pertinent part, denied an application to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction as well as claims for entitlement to service connection for hypertension; an enlarged heart; angina; DVT of the left leg; an unspecified disorder manifested by excessive bleeding after injury; an unspecified disorder manifested by a reaction to serum, drugs, or medicine (unspecified), claimed due to service immunizations; COPD; chronic emphysema; prostatitis; an unspecified upper gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified liver disorder, claimed as secondary to prostatitis and alcohol; an unspecified lower gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified disorder manifested by dizziness and vertigo; an unspecified ENT disorder; vascular and tension headaches; an unspecified venereal disease; and excessive alcohol consumption. The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator, that is, more than a simple disagreement as to how the facts were weighed and evaluated; or that the statutory or regulatory provisions existing at that time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error. CUE is the kind of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). To warrant revision or reversal of a Board decision for 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). CUE does not include a change in medical diagnosis that corrects an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d); see Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the Veteran assert more than a disagreement as to how the facts were weighed or evaluated). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). The "benefit of the doubt" rule of 38 U.S.C.A. 5107(b) does not apply to a Board decision on a motion to revise a Board decision due to CUE. 38 C.F.R. § 20.1411(a). B. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The records reviewed at the time of the April 2010 decision included service treatment records, VA treatment reports, and written statements submitted in support of the claim. Regarding the claim for service connection for excessive alcohol consumption, the Board noted that the law provides that no compensation shall be paid if a disability is the result of a Veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). The law also precludes compensation for primary alcohol abuse disabilities, and secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). It was further noted that the Veteran provided no explanation as to why he believed that service connection for excessive alcohol consumption should be granted. As such, the Board concluded that there was no dispute as to the facts, and the claim was denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Regarding the claimed DVT, an unspecified disorder manifested by excessive bleeding after injury, an unspecified disorder manifested by a reaction to serum, drugs, or medicine, COPD, chronic emphysema, prostatitis, an unspecified liver disorder, an unspecified lower gastrointestinal disorder, an unspecified ENT disorder, and an unspecified venereal disease, there was no current diagnosis of these conditions. See 38 U.S.C.A. § 1131; McClain v. Nicholson, 21 Vet. App. 319 (2007); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As to the remaining claims, the Board concluded that based on the absence of any chronic condition noted during service and for an extended period of time after service discharge that service connection was not warranted. The Board noted that while the Veteran was treated for chest pain with exertion in September 1959, this was initially attributed to an anxiety reaction. After further evaluation in subsequent days, diagnoses included a cold, sinusitis, streptococcus infection, and upper respiratory infection. However, no chronic respiratory or cardiovascular disorder was diagnosed, and x-rays of the chest were normal in September 1959. At discharge, the Veteran's blood pressure was recorded as 110/72. Also at discharge, the Veteran filled out a pre-printed record of medical history. The form lists, among other items: ear, nose, or throat trouble, frequent or severe headache, pain or pressure in chest, palpitation or pounding heart, excessive bleeding after injury, cramps in your legs, stomach, liver or intestinal trouble, any reaction to serum, drug, or medicine, venereal disease, excessive drinking habit. The Veteran left checks indicating yes next to these items, without further elaboration and without comment from the examiner. That report reflected no history of shortness of breath, chronic cough, high or low blood pressure, or frequent indigestion. Furthermore, there was no other reference in the service records to complaints of or treatment for cramps in the legs, stomach, liver, or intestinal trouble, excessive bleeding after injury, or excessive drinking habit. Also significant, regarding the claimed reaction to serum, drug, or medicine, and venereal disease, serology results at discharge revealed that a cardiolipin micro flocculation test for syphilis was negative. In addition, a blood test was administered in September 1959, with no abnormal findings. Indeed, although the Veteran indicated that he had a history of the above problems, the examination at discharge was normal for all systems. Thus, while the Veteran checked a number of items on his medical history report at discharge that were not checked on the report at entry, fewer than 12 months earlier, the basis for the Veteran's report is not otherwise demonstrated in the treatment records. Also significant to the Board's conclusion, while the Veteran was discharged in 1960, he did not file a claim until 1979, almost 20 years later. At that time, he was only seeking service connection for head and knee injuries. The Veteran did not mention any of the issues he was claiming at that time, with the possible exception of headaches, which was addressed in the remand portion of the April 2010 Board decision. These claims were only raised after, in the course of his appeal to the Court, the Veteran requested and obtained copies of his service treatment records. He then promptly submitted the current claim (more than 47 years after service discharge), listing verbatim the items he had checked off on the pre-printed medical history form in 1960. Thus, it appeared that the Veteran's claims were prompted more by his reminder of items he long ago noted in service than by any then-current or continuous symptomatology. The Board also noted that while the Veteran was competent to describe his symptoms at discharge, his report conflicted with the other evidence, including his own written statement on the report. Moreover, he provided no detail as to when he experienced the reported symptoms, and why he did not seek treatment. The Board found the report of examination for discharge more persuasive regarding his condition at that time. In summary, the Board found that while the Veteran reported certain symptomatology at discharge, all pertinent systems were found to be normal, the Veteran did not file a claim for more than 47 years, even though he sought service connection for other claims, and the evidence deemed credible and most persuasive by the Board did not relate any of the claimed disabilities to service. In written statements submitted in August 2012, the Veteran has made several arguments to support his contention that there was CUE in the April 2010 Board decision denying his claims of service connection for the various disabilities and his application to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction. The Veteran appears to raise the issue of CUE with the prior July 2008 rating decision (which was appealed and led to the denials in the April 2010 Board decision). He concludes that the Board did not have jurisdiction to review the CUE claim. However, such a Board denial subsumes the July 2008 rating decision; and accordingly, any such claim of CUE would be Board CUE in this case. CUE motions as to RO decisions are permitted by 38 U.S.C. § 5109A. An RO decision that is appealed to the Board is not final, but, rather, is considered to have been subsumed by the Board decision, which is the final decision. No claim of CUE is authorized by law except as to an RO decision which is final and binding. 38 C.F.R. §§ 3.105(a), 20.1104; see Duran v. Brown, 7 Vet. App. 216 (1994). As far as his CUE claims, he states that 38 C.F.R. §§ 3.303(b) (chronicity and continuity) was incorrectly applied. Regarding whether 38 C.F.R. §§ 3.303(b) was incorrectly applied; generally, as noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §1131. 38 C.F.R. § 3.303(b) provides for establishment of service connection based on a showing of a chronic disability during active service or within an applicable presumptive period or continuity of symptomatology from discharge from active service forward, provides as follows: (b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is 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 is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is 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 may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. However, the Board did consider 38 C.F.R. § 3.303(b) in its 2010 decision. The Board considered whether continuity of symptomatology was present from service forward. The Board noted that the service treatment records reflected no diagnoses or abnormal findings pertaining to the Veteran's claimed disabilities. Furthermore there was no objective medical evidence of any claimed disabilities until many years subsequent to service discharge. As to history of continuity of symptomatology as related by the Veteran, the Board provided plausible bases for discounting his reliability and credibility. The Board found the report of examination for discharge more persuasive regarding his condition at that time. As well, the Board found his post service reports of continuity so many years after service, not credible. The Board found it significant that he failed to report these disabilities in his initial claim for benefits. Additionally the Board found it significant that he did not file claims until he received copies of his STRS. In this context, the Board clearly applied both the chronicity and continuity of symptomatology provisions 38 C.F.R. § 3.303(b) in April 2010, and weighed the evidence in a plausible manner such as would have been within the discretion and judgment of a reasonable person. Petition to Reopen a Claim for Service Connection for a Psycho-physiological Musculoskeletal Reaction The Veteran argues that the Board incorrectly applied 38 C.F.R. § 3.156(c); 38 C.F.R. § 3.156(c)(4)(i); and 38 C.F.R. § 3.156(c)(3). Under § 3.156(c) where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This includes official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c). It is not clear how these regulations apply as there is no indication that additional service department records were received in regard to his petition to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction. The Veteran mentions this regulation, but does not state how this regulation is pertinent to his claim of CUE. In sum, it appears that he does not agree with how the evidence was weighed. Such differences of opinion as to how the evidence was weighed does not constitute a valid claim of CUE. See Crippen v. Brown, 9 Vet. App. 412 (1996) (specific allegations must assert more than mere disagreement with how the facts of the case were weighed or evaluated; the claimant cannot simply request that the Board reweigh or reevaluate the evidence); see also Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991) (mere misinterpretation of facts does not constitute CUE). Although a Veteran's pleadings are to be read sympathetically, a motion for revision based on CUE requires a degree of specificity sufficient to enable the reviewer to understand the assertion of error being made and also how any such error might have changed the outcome of the decision being collaterally attacked. See Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (even sympathetic reading does not require VA to "supply a theory that is absent" or to "imagine ways in which the original decision might be defective"); see also Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request so that the preclusive effect of res judicata bars re-filing only as to that particular assertion of CUE). Based on the Board's findings, explained above, the Board concludes that its April 29, 2010 decision, in which it denied the Veteran's petition to reopen the claim of entitlement to service connection for psycho-physiological musculoskeletal reaction as well as claims for entitlement to service connection for hypertension; an enlarged heart; angina; DVT of the left leg; an unspecified disorder manifested by excessive bleeding after injury; an unspecified disorder manifested by a reaction to serum, drugs, or medicine (unspecified), claimed due to service immunizations; COPD; chronic emphysema; prostatitis; an unspecified upper gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified liver disorder, claimed as secondary to prostatitis and alcohol; an unspecified lower gastrointestinal disorder, claimed as secondary to prostatitis and alcohol; an unspecified disorder manifested by dizziness and vertigo; an unspecified ENT disorder; vascular and tension headaches; an unspecified venereal disease; and excessive alcohol consumption, does not involve CUE. The Veteran's claim for a revision of that decision must be denied. ORDER CUE not having been shown, the Veteran's motion for revision of the Board's April 29, 2010 decision is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs