Citation Nr: 1320765 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-08 030A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Whether a March 1996 RO decision denying service connection for disabilities of the neck and low back involved clear and unmistakable error. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 RO decision. The Veteran presented sworn testimony in support of his appeal during a January 2013 hearing via videoconference before the undersigned Veterans Law Judge. FINDING OF FACT In the March 1996 decision, RO adjudicators clearly and erroneously misinterpreted a VA examination report linking the Veteran's law back and neck spasms to service. CONCLUSION OF LAW The March 1996 denial of service connection for disabilities of the low back and neck must be reversed. 38 C.F.R. § 3.105 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After his discharge from service, the Veteran filed a claim for entitlement to service connection for residuals of a low back injury and residuals of a neck injury. Service connection for these disabilities was denied in a March 1996 RO decision. The Veteran contends that the March 1996 decision was tainted by clear and unmistakable error in that the injuries to his back and neck were recorded in his service treatment records and available to adjudicators in March 1996. During his January 2013 hearing testimony, he asserted that the RO mis-read his service treatment records and specifically his separation examination reports. The United States Court of Appeals for Veterans Claims (Court) has held that the VA's usual notice and assistance requirements are not applicable in claims of clear and unmistakable error in a prior final RO decision due to the unique nature of such claims. Parker v. Principi, 15 Vet. App. 407 (2002). Previous determinations which are final and binding, including decisions of service connection and degree of disability will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). In Thompson v. Derwinski, 1 Vet. App. 251 (1991), the Court held that a difference of opinion as to the facts or a disagreement with the original rating and its interpretation of the facts is not the type of administrative reversible error contemplated under 38 C.F.R. § 3.105(a). The Court has stated that "[c]lear and unmistakable error 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). A claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310 (1992). "To prove the existence of [clear and unmistakable error] as set forth in § 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." Bustos v. West, 179 F.3d 1378, 1380 (1999). With respect to decisions effectuating a reduction in an assigned disability rating, the Court has held that error in a decision which reduces a disability rating is void ab initio and that to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In order to determine whether the March 1996 rating decision contained CUE, a review of the law and evidence which was before the rating board "at that time" must be undertaken. See 38 C.F.R. § 3.104(a)." A determination that there was 'clear and unmistakable error' must be based on the record that existed at the time of the prior...decision." Russell, supra at 314. In other words, the Board cannot apply the benefit of hindsight to its evaluation of the rating board's actions in 1996 in determining whether CUE existed. Review of the evidence of record at the time of the March 1996 decision reflects that the Veteran's service treatment records indeed showed he had been involved in a January 1986 motor vehicle accident. The emergency room records reflecting his immediate care and treatment are of record, as well as follow-up care. All records reflect complaints involving his low back and his neck. His service treatment records also reflect several other complaints involving neck and back pain. In May 1993, he was shot in the back while wearing a bullet-proof vest. Fortunately, the vest functioned as designed, and it stopped the bullet. These incidents are reflected in his records that were available for review in 1996, however. According to the report of the general medical examination conducted in October 1994 in conjunction with the Veteran's discharge from service, the Veteran reported these incidents as well as pain in his back precipitated generally by lifting. The physician who completed the report noted the Veteran's complaints and deemed that there was no current disability present, however. The Veteran underwent a VA examination for purposes of compensation in October 1995 pursuant to his initial VA claim. The report reflects that the examiner took a thorough history reflecting the events set forth above, and performed a thorough clinical examination. Subsequent X-ray tests performed in December 1995 were interpreted as showing straightening in the cervical spine which could have been due to spasm. X-ray of his lumbar spine was interpreted as normal. The examiner rendered diagnoses of muscle spasm involving primarily the cervical area as well as the lumbar area with associated neuralgia resulting in headache and paresthesia of the hands and associated sacroiliac discomfort secondary to low back trauma. In the March 1996 RO decision which is being challenged here, the RO determined that the injury episodes in service were acute and transitory without residuals. Although the RO reported the diagnoses rendered by the VA examiner, and appeared to acknowledge the current disability represented by these diagnoses, the RO refused to acknowledge any connection between the injuries in service and the diagnoses rendered less than a year after the Veteran's discharge from service. Upon review, the Board deems that the RO's 1996 decision was indeed tainted by clear and unmistakable error in that the RO adjudicators failed to interpret the diagnosis of muscle spasm due to trauma in the way a reasonable person would. The trauma affecting the Veteran's back occurred during his fifteen year period of service, and the 1995 nexus opinion is a clear linkage to service. The Board therefore holds that the March 1996 RO decision must be reversed on account of the clear and unmistakable error. Reversal will have the practical effect of awarding an effective date of November 1994, the day following the Veteran's discharge from service, for the grants of service connection for a lumbar spine disability and a cervical spine disability. 38 C.F.R. § 3.400(b)(2)(i). In applying this new effective date, the RO will want to check the Veteran's VA medical records, if any, to assist in determining the level of impairment involving the Veteran's low back and cervical spine over the years. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). In summary, the Board holds that the March 1996 RO decision denying service connection was tainted by clear and unmistakable error. The appeal is therefore granted and the March 1996 denial is reversed. ORDER The March 1996 RO decision denying service connection for disabilities of the neck and low back is reversed. ____________________________________________ Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs