Citation Nr: 1321432	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  12-15 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Whether there was clear and unmistakable error (CUE) in a June 1985 Board of Veterans' Appeals (Board) decision which denied entitlement to service connection for residuals of frozen feet.

(The Veteran's claims of whether new and material evidence has been received to reopen the claims of service connection for depressive disorder and posttraumatic stress disorder are the subject of a separate Board decision.) 


REPRESENTATION

Appellant represented by:	C.H. Thornton, Jr., Attorney


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel


INTRODUCTION

The Veteran had active service from August 1979 to August 1982.

This matter is before the Board on the Veteran's February 2012 motion alleging CUE in a previous June 17, 1985, Board decision that denied service connection for residuals of frozen feet.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In a June 1985 decision, the Board denied service connection for residuals of frozen feet. 

2.  It is not shown that the correct facts were not before the Board or that the statutory and regulatory provisions extant at the time were incorrectly applied in the Board's June 1985 decision. 


CONCLUSION OF LAW

The June 1985 Board decision that denied service connection for residuals of frozen feet was not clearly and unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400 to 20.1411 (2012). 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As an initial matter with respect to whether VA has met the notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA), the VCAA and its implementing regulations do not expressly indicate whether such provisions apply to motions alleging CUE in prior final decisions of the Board.  However, the United States Court of Appeals for Veterans Claims (Court) has held that, "as a matter of law, the VCAA is inapplicable to CUE claims."  Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (the duties specified in the VCAA are not applicable to allegations of CUE in a prior Board decision).  Thus, given the nature of a motion to revise an earlier decision based upon CUE, no notification as to additional evidentiary development of the record is at issue, since the evaluation of such a motion is based upon the record as it was constituted at the time of the decision for which revision is sought. 

A decision by the Board is subject to revision on the grounds of CUE.  If evidence establishes the error, a prior decision shall be reversed or revised.  38 U.S.C.A. § 7111.  The moving party seeks to reverse or revise, on the grounds of CUE, a June 1985 Board decision that denied service connection for residuals of frozen feet.

Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400 to 20.1411.  The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error.  38 C.F.R. § 20.1404(b).  The implementing regulation defines CUE as a very specific and rare 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.  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.  38 C.F.R. § 20.1403(a) (2012). 

A determination of CUE in a prior Board decision must be based on the record and 
the law that existed when that decision was made.  38 C.F.R. § 20.1403(b)(1).  The Court has stated that subsequently developed evidence may not be considered in determining whether error existed in the prior decision.  Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). 

Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, (2) the Secretary's failure to fulfill the duty to assist, and (3) a disagreement as to how the facts were weighed or evaluated.  38 C.F.R. § 20.1403(d).  CUE does not include 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) (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.  38 C.F.R. § 20.1403(c).  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) (2012). 

Under the law in effect at that time of the June 1985 decision, service connection was granted for disability resulting from disease or injury incurred or aggravated in service.  38 U.S.C. §§ 310, 331 (1985); 38 C.F.R. § 3.303 (1985).

The Veteran filed an original claim for compensation in April 1983, eight months following his discharge from service.  In a Statement In Support Of Claim (VA Form 21-4138) dated in May 1983, he had described that his unit had been on a two week maneuver in Germany in March 1981 when he experienced a frost injury to both feet.  He described that he had gone to the dispensary and his feet were soaked.  He added that he had been having symptoms which included numbness, aching, tingling, and burning ever since.

The Veteran's claim was denied by rating action of the RO dated in May 1984.  At 
that time, the RO determined that the service treatment records were negative for symptomatology associated with frozen feet, and the Veteran had not submitted or alleged treatment for frozen feet subsequent to service.  The Veteran timely filed a notice of disagreement and perfected a substantive appeal.  In support of his claim, he submitted the following:

(a) a September 1984 lay statement from his mother indicating that his feet prior to service were normal, and that upon his return from Germany, they were in bad shape; 

(b) a VA medical certificate dated in May 1983 showing that the Veteran reported experiencing frostbite in Germany during his active service in March 1980, that he had since experienced pain in the balls of his feet, that physical examination revealed 4+ pedal pulses, and that the diagnosis was frostbite by history and left plantar wart;

(c) a VA medical certificate nurse's note dated in May 1983 showing that ever since service, his feet hurt on walking a lot and would get cold easily, and that he had been out in the cold for two weeks in Germany, but not hospitalized for frostbite or anything documented;

(d) a VA outpatient treatment record reflecting treatment in June 1983 during which the Veteran reported pain in both feet since frostbite in March 1980, and treatment in July 1983 in which it was noted that he had matatarsalgia of both feet; and 

(e) a VA radiology report which indicated that X-rays of both feet failed to reveal any bone or joint abnormality.

As noted above, the Veteran's service treatment records were completely negative of any findings associated with frostbite or a foot disability.  The Veteran had declined the opportunity to undergo a separation examination.

In June 1985, a decision of the Board denied service connection for residuals of frozen feet.  The Board reviewed the Veteran's service treatment records, noting the absence of any treatment for symptoms associated with frostbite of either foot.  It was also noted that the Veteran signed a waiver with respect to a medical examination at separation from service.  The Board also considered the Veteran's contentions; the May, June, and July 1983 VA medical records referenced above; and the September 1984 lay statement from the Veteran's mother.  

Based on the record before the Board in June 1985, the Board determined that the service treatment records had not shown that the Veteran had manifested frozen feet in service, and that the Veteran was not suffering from residual disability that was attributable to frozen feet.  The Board concluded that residuals of frozen feet were not incurred in or aggravated by service.

In his February 2012 motion alleging CUE in the June 1985 Board decision, the Veteran's representative asserts that the Board erred in concluding that (1) the Veteran did not manifest frozen feet while in service, (2) he was not suffering from residuals of frozen feet at the time of his claim, and (3) his frozen feet residuals were not incurred in or aggravated by service.  

It was specifically argued that the Board failed to properly consider lay statements of the Veteran and his mother in rendering the decision.  In this regard, it was asserted that the Board relied on its own erroneous interpretation of 38 USC 1154(a) and 5107(b) which only entailed noting the lay evidence, but not evaluating it in the absence of supportive contemporary medical records.

The Veteran's representative also argued that the Board failed to consider that the Veteran's symptoms were evident in service, manifested within 12 months of service discharge, and were chronic at the time of the filing of his claim.

The Board finds that the moving party's allegation of error in the June 1985 Board decision essentially relates to how the Board weighed and evaluated the evidence that was before it.  A disagreement as to how the facts were weighed or evaluated does not constitute CUE.  In this regard, the Board did consider the lay evidence of the Veteran and his mother, along with the service treatment records, and the post-service medical evidence and concluded that the evidence weighed against the Veteran's claim.  

The Board recognizes the contentions of the Veteran's representative that the lay statements of the Veteran and his mother regarding his asserted frostbite should have been considered competent and sufficient to establish service connection in light of the holdings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  However, as noted above, CUE does not include 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) (2012).

In Berger v. Brown, 10 Vet. App. 166 (1997), the Court held that "opinions from this Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid CUE claim."  Id. at 170.  The Court reaffirmed this principle in Brewer v. West, 11 Vet. App. 228, 234 (1998) and Smith v. West, 11 Vet. App. 134, 137 (1998).   Indeed, in Brewer, the Court held that, although judicial decisions made during the course of an appeal are retroactively applicable to pending appeals, for purposes of adjudicating claims of CUE in a prior VA decision, "new" judicial interpretations of the law that were not issued at the time of the prior VA decision are not applicable.  Id. at 234.  Moreover, subsequent to the June 1985 Board decision, the General Counsel of VA concluded that decisions of the Court invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior "final" adjudications of claims, but should be given retroactive effect as they relate to claims still open on direct review.  O.G.C. Prec. 09-94, 59 Fed. Reg. 27309 (1994); see also O.G.C. Prec. 25-95, 61 Fed. Reg. 10065 (1996).  Precedent opinions of the General Counsel are binding on the Board.  38 U.S.C.A. § 7104(c).

The Board has considered the argument of the Veteran's representative that the Federal Circuit in Patrick v. Nicholson, 242 Fed.Appx. 695, 2007 WL 1725465 (C.A.Fed. (Kan.))) held that interpretations of statutory provisions are to have retroactive effects on CUE claims.  However, this Federal Circuit decision is nonprecedential, and while it may be cited for any persuasiveness or reasoning it contains, it is not for publication in the Federal Reporter and can have no precedential effect.

The Board finds that in June 1985, it weighed the evidence before it and reached its decision.  The allegations of the Veteran's representative are essentially a disagreement as to how the facts were weighed or evaluated and does not constitute CUE.

The moving party has not identified any specific finding or conclusion in the June 1985 Board decision that was undebatably erroneous.  In addition, there is no indication that the correct facts, as they were known at the time, were not before the Board, or that the statutory and regulatory provisions extant at the time were incorrectly applied.  The evidence before the Board in June 1985 was varied on the matter of the etiology of the Veteran's foot symptomatology, which would leave room for debate in the weighing of the evidence.

In this regard, at the time of the June 1985 decision, the Board was not precluded from relying upon its own medical judgment to support its conclusions.  Cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board cannot substitute its own medical judgment for that of medical professionals).  A medical member of the Board participated in the June 1985 Board decision and was a signatory to the determination.  His signature signified his agreement with the conclusions that, in considering the medical evidence of record, with the application of generally accepted medical principles, the evidence did not demonstrate that the Veteran had residuals of frostbite that were etiologically related to his period of active service.  See Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the Board's position was substantially justified in a pre-Colvin decision in relying on its own medical judgment).  As the June 1985 decision was ascribed to by the medical member of the panel, it cannot be said that all the evidence of record supported the moving party's position.  The opinion that the evidence was insufficient to establish service connection for residuals of frozen feet was supported by the medical member of the panel, and the Board apparently relied on the medical judgment in deciding the appeal. 

Therefore, as the record at the time of the June 1985 decision included medical 
evidence both for and against the conclusion that the Veteran had residuals of frozen feet that was connected to service, the moving party's argument remains one that the Board should have weighed or evaluated the evidence differently, and, thus, cannot form the basis for a finding of CUE.  38 C.F.R. § 20.1403(d)(3) (2012).

Based on the foregoing, as the June 1985 Board decision contains no 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 be manifestly different but for such error, the June 1985 Board decision was not clearly and unmistakably erroneous in failing to award service connection for residuals of frozen feet. 

In summary, the Board's June 1985 decision does not contain an outcome determinative error.  Thus, that decision is not clearly and unmistakably erroneous.  The moving party's motion for revision of that decision is denied.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403 (2012).


ORDER

The motion for reversal or revision of the June 1985 Board decision on the basis of CUE is denied. 



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs