Citation Nr: 1316303 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-40 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been submitted to reopen the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to January 1990. This appeal to the Board of Veterans' Appeals (Board) is from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen a previously denied claim for § 1151 compensation for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula. In a May 2011 decision since issued, the Board also declined to reopen this claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In an October 2012 memorandum decision, the Court vacated the Board's decision and remanded the claim for further development and readjudication. The Board, in turn, is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The basic facts of this case are as follows: The Veteran underwent a rib resection at a VA facility in January 2002. After his post-operative recovery period, additional physicians determined that, during the rib removal, a nerve was cut which resulted in his winged scapula and additional disabilities. The RO denied his original claim for § 1151 compensation in August 2005, and he admittedly did not appeal that decision. That decision therefore is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012). So to warrant reopening this claim and further considering it on its underlying merits, there has to be new and material evidence concerning the claim since that decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Veteran filed his petition to reopen this claim in January 2009, which the RO denied in May 2009 and which the Board also denied, on appeal, in May 2011. But the Court, as mentioned, since has vacated that Board decision in October 2012. In its October 2012 single-judge, memorandum decision vacating the Board's decision denying the petition to reopen this claim, the Court noted that the Veteran's reply brief had included several statements that were not in the record of proceedings before the Court at the time. He had alleged that he was not warned that constant pain and limited arm function could result from his surgery. He also stated that he did not give informed consent for the procedure. These statements, along with additional medical evidence recently submitted by him, have not been initially considered by the RO as the Agency of Original Jurisdiction (AOJ). And in correspondence dated January 2013, he indicated that he wanted his claim remanded (sent back) to the AOJ, i.e., RO, for review of this newly submitted evidence in the first instance. He consequently has not waived his right to have the RO (AOJ) initially consider this additional evidence; indeed, to the contrary, he has expressly indicated he is not waiving this right. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant). To facilitate the AOJ's review and subsequent adjudication of this claim, however, the Board will preliminarily address an additional issue raised in the Court's October 2012 memorandum decision. Specifically, the Court noted that the record contained evidence from a VA medical facility in Omaha, Nebraska, and that it was unclear from the record when these documents were first obtained. The RO's August 2005 rating decision denying the Veteran's original claim for benefits referenced documents obtained from the Lincoln VA medical facility, but did not mention documents from the Omaha facility. Thus, there was no indication in the RO's decision that the Omaha documents were part of the record at the time it made its decision concerning this claim, and there was no subsequent finding by the RO or the Board addressing when these documents were received by VA. The Court noted that, if the documents were obtained after the August 2005 rating decision, they are potentially new and material evidence and therefore must be addressed. But further review of the record confirms these documents were indeed associated with the claims file at the time of the August 2005 final and binding decision, so presumably considered in that earlier decision. As part of the Veteran's original claim for § 1151 compensation, a VA opinion was obtained in June 2005. This opinion included a review of the claims file, and the examiner specifically referenced an operation report dated January 17, 2002. This report was generated from the Omaha VA medical facility. Therefore, the Omaha records were in the claims file at the time the VA opinion was obtained in June 2005 and at the time the RO rendered its decision in August 2005. They resultantly should not be considered "new" when determining whether new and material evidence has been received since that decision to reopen this previously denied claim. See 38 C.F.R. § 3.156(a) (2012)(new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened). The Court further indicated the Veteran seemingly is alleging clear and unmistakable error (CUE) in the RO's August 2005 decision initially considering and denying his claim. A finding of CUE in that earlier decision, since a collateral attack on that earlier decision, would vitiate its finality (res judicata effect). 38 C.F.R. § 3.105(a). But it is unclear whether the Veteran is actually alleging CUE in that earlier decision, and CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). In the absence of sufficient explanation or pleading as to why the prior final and binding decision should be revised or reversed on the basis of CUE, the Court has held that the CUE component of the claim should be dismissed - albeit without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). As the Court also explained, neither the Court nor the Board has jurisdiction to consider in the first instance whether there was CUE in the RO's August 2005 decision initially considering and denying this § 1151 claim. The Veteran therefore needs to clarify whether he is alleging CUE in that decision and make the required specific arguments as to why that decision involved CUE. CUE 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). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). "To prove the existence of [CUE as set forth in [38 C.F.R.] § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). The Court has devised a three-prong test for determining whether there was CUE in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the 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. Russell, 3 Vet. App. at 313-14. In Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), the Court clarified the test set forth in Russell. In Fugo, the Court stated, "CUE 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." 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. Id. See also Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). See also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell). Accordingly, this § 1151 claim is REMANDED for the following additional development and consideration: 1. First ask the Veteran to clarify whether he is alleging CUE in the RO's August 2005 decision initially considering and denying his claim. But also advise him that, if he is, he has to make specific arguments or pleadings as to what exactly the CUE was and why, if not committed, would have manifestly changed the outcome of that prior decision, meaning that reasonable minds could not disagree on this point. 2. If he is alleging CUE, and makes sufficient pleadings concerning this, determine whether there was CUE in the RO's August 2005 decision initially considering and denying this § 1151 claim. A finding of CUE would vitiate the finality (res judicata) of that prior decision, but absent this finding or sufficient pleading, meaning the decision otherwise remains final and binding on him based on the evidence then of record, again determine whether there is the required new and material evidence since that decision to reopen this claim. This additional determination must be based on all of the evidence of record that was not considered in that prior decision, whatever this additional evidence may be, but including the Veteran's lay statements contained in his May 2012 reply brief to the Court and any other information or evidence obtained following or as a result of this remand. If the claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).