Citation Nr: 1321915 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 13-11 528 ) DATE ) ) THE ISSUE Whether the Board of Veterans' Appeals (Board) decision of February 10, 1953, that denied service connection for Addison's disease, should be revised or reversed on the grounds of clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to March 1952. This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 motion for revision of a February 10, 1953, decision of the Board which denied service connection for Addison's disease on the basis of CUE. In a statement received in May 2013, the Veteran submitted a "new application" for service connection for "disabilities occurring while in service in the Army in 1951 and 1952." As no decision related to this statement has been issued by the agency of original jurisdiction (AOJ), the Board cannot establish jurisdiction. Therefore, the May 2013 statement is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In a final decision dated on February 10, 1953, the Board denied entitlement to service connection for Addison's disease. 2. The Board's February 10, 1953, decision was reasonably supported by the evidence of record and consistent with VA law and regulations then in effect. CONCLUSION OF LAW Clear and unmistakable error in the Board's February 10, 1953, decision that denied entitlement to service connection for Addison's disease has not been established. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 to 20.1411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to allegations of CUE as a CUE claim is not a conventional appeal in pursuit of a claim for benefits, but a collateral attack of a final decision. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). A final decision by the Board is subject to revision on the grounds of CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 (2012). If evidence establishes such error, the prior Board decision shall be reversed or revised, and the correction to the subject decision is deemed to have been made on the date of that prior decision, thereby allowing for retroactive benefits. Id.; see also 38 C.F.R. §§ 3.105(a), 20.1406 (2012); see Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002). The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged CUE, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (assertions of CUE in an RO decision); 38 C.F.R. § 20.1404(b) (setting forth similar requirements with respect to assertions of CUE in a Board decision). Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing. Simmons v. Principi, 17 Vet. App. 104, 114 (2003); 38 C.F.R. § 20.1404(b). I. February 2013 Motion for CUE The Veteran's representative contends that the Board's decision issued on February 10, 1953, erroneously failed to consider the presumption of soundness and the pre-existence prong and aggravation prong that must both overcome to defeat the presumption. Particularly, he asks the Board to consider whether there was clear and unmistakable evidence that the injury or disease was not aggravated by service under the operative regulation at the time of the Board's February 1953 decision, which provided that "[a] pre-existing injury or disease will be considered to have been aggravated by active...service where there is an increase in disability during...service unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.63(k) (1949). Further, the regulation provided that the "specific finding" requirement will be met where competent evidence shows " that an increase in severity of a disease or injury, or of the disabling effects thereof, or acceleration in progress of a disease was that normally expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service." Id. Specifically, the Veteran alleges that his condition was, at most, non-disabling at the time of his entry into service in October 1951 and deteriorated over his first few months of service. As this deterioration was eventually of sufficient severity to require discharge from service, the Veteran contends that the progression of the disease was clearly well beyond the non-disabling level seen in October 1951 at the time of discharge from service. Accordingly, the Veteran contends that the Board should have addressed the question of whether his pre-existing condition was aggravated in service in the February 1953 decision and that the failure to analyze the claim for service connection under both the pre-existence prong and the aggravation prong constitutes CUE. Briefly, the Board notes that the February 2013 motion cites to the 1938 version of the regulations, which do not contain a § 3.63(k), when the regulations in effect at the time of the Board decision in February 10, 1953, were enacted in 1949. See Revision of Regulations, 13 Fed. Reg. 6997 (November 27, 1948); Joyce v. Nicholson, 19 Vet. App. 36, 45 (2005) (finding that VA Reg. 1043 was codified in 38 C.F.R. § 3.63 in 1949). The Board has construed the citation as "38 C.F.R. §3.63(k) (1949)" in accordance with the duty to sympathetically read the legal arguments alleged in a motion for CUE. Acciola v. Peake, 22 Vet. App. 320, 326-27 (2008). Further, the Board will not limit its analysis to the particular subsection explicitly referenced in the February 2013 motion, subsection (k), which applies to peacetime Veterans, but will read the motion as implicating all applicable subsections of 38 C.F.R. § 3.63 and all other governing law relevant to the specific arguments alleged in the February 2013 motion. Id. The February 2013 motion also cites to a 1953 supplement to 38 C.F.R. § 3.63 (1949), but there were no intervening change to § 3.63(k) from 1949 to 1953. This citation is erroneous and the Board need not address it further. II. Establishing Clear and Unmistakable Error in a Board Decision CUE is "a very specific and rare kind of error ... 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." 38 C.F.R. § 20.1403(a); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). To establish CUE, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. A determination of CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). 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). A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE motion. Damrel, 6 Vet. App. at 245. Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the Veteran with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). 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 provisions of 38 U.S.C.A. § 5107(b) do not apply to a Board's decision on a CUE motion. 38 C.F.R. § 20.1411(a). III. The Statutory and Regulatory Provisions Extant at the Time of the February 1953 Board Decision At the time of the 1953 Board decision, the governing law applicable to wartime Veterans, enacted by Congress in the form of a regulation prescribed by the President in 1933, describing basic entitlement to service-connected compensation benefits, the presumption of soundness, and the presumption of aggravation of a preexisting condition, was found in Veterans Regulation (VR) No. 1(a), part I, paragraphs 1(a), (b), and (d). These paragraphs are currently codified at 38 U.S.C. §§ 1110 (formerly 38 U.S.C. § 310), 1111 (formerly 38 U.S.C. § 311), and 1153 (formerly 38 U.S.C. § 353), respectively, without substantive change. The wartime presumption of soundness applied to Korean Conflict veterans. See Pub. L. No. 84-239, 69 Stat. 497 (Aug. 4, 1955). The relevant provisions of VR No. 1(a) addressing the presumption of soundness, including the provisions roughly corresponding to the current "pre-existence prong" and the "aggravation prong," are as follows: [E]very person employed in the active military or naval service shall be taken to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities or disorders noted at time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to acceptance and enrollment and was not aggravated by such active military or naval service. VR No. 1(a), part I, para. 1(b), as amended by Pub. L. No. 78-144 § 9(b), 57 Stat. 554-560 (1943). [A] preexisting injury or disease will be considered to have been aggravated by active military service...where there is an increase in disability during active service unless there is a specific finding that the increase in disability is due to the natural progress of the disease." VR No. 1(a), part I, para. 1(d) (1943). VR No. 1(a), part I, paragraphs (b) and (d) were implemented by 38 C.F.R. § 3.63 (1949). At the time of the February 1953 Board decision, subsection (b) of this regulation restated paragraph (b) above. Subsection (d) defined the phrase "clear and unmistakable" as "obvious or manifest" and explained that, "[a]ccordingly, evidence which makes it obvious or manifest, [sic] that the injury or disease under consideration existed prior to acceptance and enrollment for service will satisfy the requirements of the statute." 38 C.F.R. § 3.63(d). Further, "claims to which the above-cited presumptions apply" will only be denied "on the basis of evidence which clearly and unmistakably demonstrates that the disease did not originate in service, or, if increased in service, was not aggravated thereby." Id. 38 C.F.R. § 3.63(e) and (f), in relevant part, provided additional guidelines for determining whether a disability pre-existed military service: Determinations concerning the inception of injury or disease not noted at enlistment...should not be based on medical judgment alone as distinguished from accepted medical principles or on history alone without regard to clinical factors pertinent to the basic character, origin, or development of such injury or disease. Adjudicative action under this regulation should be based on a thorough analysis of the entire evidentiary showing in the individual case and a careful correlation of all the medical facts with due regard to accepted medical principles pertaining to the history, manifestations, clinical course and character of such injury or disease. History conforming to accepted medical principles pertaining to such injury or disease should be given with basic clinical data concerning the manifestation, development and nature of such injury or disease, and accorded probative value consistent with accepted medical and evidentiary principles in relation to other competent medical evidence in each case. 38 C.F.R. § 3.303(e) (1949). There are certain medical principles so well and universally recognized as definitely to constitute fact, and when in accordance with these principles existence prior to entrance into service is established, no further additional or confirmatory facts are necessary...[M]anifestations of...symptoms of chronic disease from date of enlistment, or so close to that date that the disease could not have originated in so short a period, will be accepted as clear and unmistakable proof that the disease existed prior to entrance into active service. 38 C.F.R. § 3.303(f) (1949). 38 C.F.R. § 3.63(i), in relevant part, provided further instruction for determining whether a pre-existing condition increased in severity during active service: [I]njury or disease [found to pre-exist service] will be conceded to have been aggravated where such disability underwent an increase in severity during service unless such increase in severity is shown by clear and unmistakable evidence, including medical facts and principles, to have been due to the natural progress of the disease. However, subsection (i) also provides the following limitation: Aggravation of a [pre-existing] disability...may not be conceded where the disability underwent no increase in severity during service...." The next provision of subsection (i) provides an example of a situation where a pre-existing disease or injury would be found to have increased in severity during service: Sudden pathological developments involving pre-existing diseases such as hemoptysis, spontaneous pnuemothorax perforation of gastro-duodenal ulcer, coronary occlusion or thrombosis, cardiac decompensation, cerebral hemorrhage, and active recurrent rheumatic fever occurring in service establish aggravation unless it is shown by clear and unmistakable evidence that there was no increase in severity in severity during service. The next two sentences of subsection (i), conversely, provide two examples of situations where the pre-existing disease or injury would not be found to have increased in severity during service: Recurrences, acute episodes, symptomatic fluctuations, descriptive variations and diagnostic evaluations of a preservice injury or disease during service or at the time of discharge are not to be construed as establishing increase of disability in the absence of sudden pathological development or advancement of the basic chronic pathology during active service such as to establish increase of preexisting disability during service. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including post-operative scars, absent or poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is service-connected, i.e., aggravated by service otherwise than by the usual effects of treatment. 38 C.F.R. § 3.63(i) (1949) (emphasis added). 38 C.F.R. § 3.63(k), the regulation cited by the Veteran's representative, applies only to peacetime Veterans, but the Court of Appeals for Veteran's Claims (Court) has held that the "specific finding" requirement stated in that regulatory provision applies to wartime Veterans through the operation of VR No. 1(a) part I, para. 1 (d), which, as quoted above, also provides that a preexisting condition that increased in severity during service will be considered to have been aggravated by service unless there is a specific finding that the increase in disability is due to the natural progress of the disease, and applies to both peacetime and wartime Veterans, and that this statutory provision supplements and subsumes the lesser "clear and unmistakable evidence" standard recited in 38 C.F.R. § 3.63(i). Joyce, 19 Vet. App. at 51; Sondel v. West, 13 Vet. App. 213, 220 (1999) ("The administrative regulation could not have altered a provision in the VR, and the Court finds no evidence that it was intended to do so...[Therefore,] the Secretary must have intended the revised presumption of aggravation ... to be at least as beneficial ... as the presumption applicable to peacetime veterans."). IV. The February 1953 Board Decision The February 10, 1953, decision of the Board denied service connection for Addison's disease for the reason that the disorder clearly and unmistakably pre-existed service and was not aggravated during service. The evidence supporting this decision was summarized as follows: (1) the Veteran's physician reported symptomatology indicating Addison's disease within approximately 60 days following his entrance into active service; (2) the Veteran was hospitalized for the same condition within approximately one week thereafter; (3) the history and clinical findings reported during service, including hyperpigmentation of the skin of several years duration, and the other evidence of record, established symptoms of Addison's disease prior to entry into active service; (4) the inherent nature of Addison's disease in light of well-recognized and generally accepted medical principles tend to show that the disorder existed prior to service, and (5) there was no extension of pathology of the pre-existing condition during service. Pathology is defined as "the structural and functional manifestations of the disease." See Dorland's Illustrated Medical Dictionary 1416 (28th ed. 1994). V. Analysis By the clear language of the decision, the Board properly considered whether there was clear and unmistakable evidence showing that the Veteran's condition pre-existing service and was not aggravated by service. With regard to aggravation, specifically, the Board decision found that there was no extension of the pathology of the pre-existing condition during service, meaning, in the context of 38 C.F.R. § 3.63(i) (1949), that the Veteran's pre-existing condition did not increase in service within the meaning of that phrase in the regulation. Consequently, the question of whether any increase in severity in service was due to the natural progression of the disease was not reached, rendering any determination on the existence of a "specific finding" on that issue unnecessary. The Board's February 1953 was consistent with the applicable law and regulations in effect at the time of the decision. The evidence of record at the time of the decision contains a basis for the Board's determination. At the time of the February 1953 Board decision, the evidence of record included the testimony of the Veteran; affidavits from fellow employees at the Veteran's place of post-service employment; an occupational physical examination conducted pursuant to post-service employment; private medical records, testimony, statements from the Veteran's primary treating private physician; VA treatment records; and his service records. A service clinical record dated January 1952 shows a diagnosis of "hypofunction, adrenal cortex, cause unknown" and "common cold." Treatment notes show that the Veteran reported becoming fatigued easily and being winded after running a mile since he was 12 or 13 years old, had periodic intermittent high blood pressure prior to service, his mother noticed that his skin had darkened about two to three years prior, that this darkening had persisted with some fluctuation, and that his weight had decreased from 165 pounds to 147 pounds before increasing back up to 162 pounds. He was diagnosed with Addison's disease and prescribed cortisone and desoxycorticosterone acetate (DOCA), and pellets of DOCA were implanted beneath his left shoulder blade. Treatment notes from late January and February 1952 following the start of cortisone and DOCA therapy note improved blood pressure, described as a "great improvement" and "substantial gain," and that the Veteran "feels much better." In February 1952, the Medical Board determined that the Veteran suffered from hypofunction of the adrenal cortex, cause unknown, manifested by hypotension, weakness, fatigueability, and hyperpigmentation of the skin, and should be discharged from military service for disability not incurred or aggravated by military service. This evidence indicates that the Veteran's illness resulted from an underlying condition that pre-existed service, and that any symptoms that manifested in service were the result of an recurrence, acute episode, or symptomatic fluctuation and constitutes a clear factual basis for the Board's conclusions at the time of the February 1953 decision. See 38 C.F.R. § 3.63(i). To be sure, the record at the time of the Board's February 1953 decision also contains evidence that weighs against the Board's decision and in favor of the Veteran's claim, but a disagreement as to how the facts were weighed or evaluated does not constitute CUE. 38 C.F.R. § 20.1403(d)(3); see also Hazan v. Gober, 10 Vet. App. 511, 523 (1997) (quoting Russell, 3 Vet. App. at 313-14). The February 1953 Board decision was consistent with the statutory and regulatory provisions in effect at that time. The record shows that the correct facts were before the Board at the time of the February 1953 decision and provide a basis for the Board's decision. Further, to the extent that there could have been any error, it is not absolutely clear that it manifestly changed the outcome or that had it not been made a different result would have ensued. Bouton, 23 Vet. App. at 71; 38 C.F.R. § 20.1403(c). ORDER The motion for revision of the Board's February 1953 decision denying service connection for Addison's disease on the basis of CUE is denied. ____________________________________________ John Z. Jones Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs