Citation Nr: 1323874 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 11-23 721A ) DATE ) ) THE ISSUES 1. Whether a July 13, 2011, decision of the Board of Veterans' Appeals that denied entitlement to service connection for bilateral pes planus contains clear and unmistakable error (CUE). 2. Whether a July 13, 2011, decision of the Board of Veterans' Appeals that denied entitlement to service connection for a neck disability contains CUE. 3. Whether a July 13, 2011, decision of the Board of Veterans' Appeals that reopened and denied entitlement to service connection for a back disability contains CUE. ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The moving party served on active duty from November to December 1976. This matter comes before the Board of Veterans' Appeals (the Board) based on a November 2012 motion filed by the moving party that sought a revision of a July 2011 Board decision on the basis of CUE. See 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 et seq. (2012). FINDINGS OF FACT 1. In a decision dated July 13, 2011, the Board denied the moving party's claims of entitlement to service connection for bilateral pes planus and a neck disability and reopened and denied the moving party's claim of entitlement to service connection for a back disability. 2. The moving party has failed to show that the applicable statutory and regulatory provisions existing at the time of the July 2011 Board decision regarding the denial of entitlement to service connection for bilateral pes planus were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 3. The moving party has failed to show that the applicable statutory and regulatory provisions existing at the time of the July 2011 Board decision regarding the denial of entitlement to service connection for a neck disability were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 4. The moving party has failed to show that the applicable statutory and regulatory provisions existing at the time of the July 2011 Board decision regarding the reopening and denial of entitlement to service connection for a back disability were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. CONCLUSIONS OF LAW 1. The Board's July 2011 decision does not contain CUE regarding the denial of entitlement to service connection for bilateral pes planus. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2012). 2. The Board's July 2011 decision does not contain CUE regarding the denial of entitlement to service connection for a neck disability. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. 3. The Board's July 2011 decision does not contain CUE regarding the reopening and denial of entitlement to service connection for a back disability. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The moving party contends that a July 2011 Board decision was clearly and unmistakably erroneous in denying his claims of entitlement to service connection for bilateral pes planus, a neck disability, and a back disability. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (the Court) held in part that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions." See Livesay, 15 Vet. App. at 179. It was observed that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging such error is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant," as defined by 38 U.S.C.A. § 5100 (West 2002), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. Based on the precedential decision of the Court in Livesay, the Board concludes that the moving party's CUE claim is not subject to the provisions of the VCAA. The moving party has been accorded sufficient opportunity to present his contentions. In November 2012, the moving party presented a 57-page CUE motion. There is no indication that the moving party has further argument to present. Pertinent law and regulations Board CUE A final decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111; 38 C.F.R. §20.1400. Review for clear and unmistakable error 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). The motion to review a prior final Board decision on the basis of clear and unmistakable error must set forth clearly and specifically the alleged clear and unmistakable error, 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. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Clear and unmistakable error 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. 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. See 38 C.F.R. § 20.1403(a); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (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 claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 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. See 38 C.F.R. § 20.1403(e). The review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal that, 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. See 38 C.F.R. § 20.1403(b), (c); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Pertinent law and regulations in effect at the time of the 2011 Board decision Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). With a chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 (2011) 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. The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran's claim. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. A lay veteran is competent to describe continuity of pain since service and the observable flatness of his feet. Falzone v. Brown, 8 Vet. App. 393, 405 (1995). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." If a preexisting disability is noted upon entry into service, the Veteran cannot claim service connection for that disability on a direct basis, but may assert entitlement to service connection on the basis of aggravation. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1153, 1137; 38 C.F.R. § 3.306(a). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002). A claimant is entitled to a hearing by a Decision Review Officer (DRO) at a RO. 38 C.F.R. § 20.1507 (2011). Analysis General contentions The moving party first argues that his claims were well grounded. The Board notes that the VCAA eliminated the requirement that a claim be well grounded and that his arguments regarding his claims being well grounded are irrelevant to his CUE claim. The moving party also asserts that 38 U.S.C.A. § 1154(b) was applicable to his claims and that the Board should have considered whether there was clear and convincing evidence to the contrary to rebut a presumption of grants of service connection for the three disabilities subject to the CUE claims. The Board notes that the moving party is not a combat veteran and that therefore 38 U.S.C.A. § 1154(b) was inapplicable to his claims. The moving party claims that he was prejudiced by his lack of a Board hearing. The Board notes that in his VA Form 9s dated in June 2006 and December 2008 he did not request a Board hearing. The moving party, however, did fail to report for a scheduled DRO hearing in February 2009 because he was incarcerated at the time. In any event, a failure to fulfill VA's duty to assist a veteran with the development of facts relevant to his or her claim by not providing him a hearing is not CUE. The moving party maintains that the Board committed error by not relying on independent medical treatises and opinions from medical examiners who did not work for VA. However, an argument that the Board failed to obtain additional evidence, or to obtain evidence from particular sources, amounts to no more than an argument that VA failed in its duty to assist, and such a failure cannot support a finding of CUE in a Board decision. Whether a July 13, 2011, decision of the Board of Veterans' Appeals that denied entitlement to service connection for bilateral pes planus contains CUE The moving party argues that he was entitled to a presumption of soundness regarding his bilateral pes planus and that citing Crowe v. Brown, 7 Vet. App. 238 (1994), any statements made by him about his pre-service symptomatology were not sufficient to rebut the presumption of soundness. The Board did not err in not applying the law and regulations regarding presumption of soundness. The moving party maintains that the Board offered no medical treatise evidence or independent medical evidence, or any analysis of any evidentiary showing of any material facts that the pes planus existed prior to service. The Board, however, discussed the finding of moderate pes planus was noted on the November 1976 entrance examination. Accordingly, there was independent medical evidence that the moving party was not entitled to the presumption of soundness. The moving party asserts that the Board committed an abuse of discretion by acting arbitrarily and capriciously and not in accordance with the law by finding him not credible as to reporting of foot symptomatology, to include symptomatology prior to service, because he did not have a firm command of his childhood medical history. The Board decision does contain a finding that the Veteran was not credible, explaining that such a finding was based on inconsistent and irreconcilable statements he had made in the past. For example, in a VA Form 21-4138 received in November 2004, the moving party denied having pes planus on entrance into service. The moving party, however, claimed in his June 2006 VA Form 9 that he did have preexisting pes planus, which is he is capable of observing. It is well established in the law that the credibility and weight to be attached to evidence, including an appellant's statements, is well within the purview of the Board as the finder of fact. For this reason, and as the Board explained the reasons for this finding in the decision, the moving party is ultimately expressing disagreement on how the Board weighed evidence, and such a disagreement cannot support a finding of CUE in a Board decision. The moving party next argues that even if he was not entitled to the presumption of soundness, the Board failed to correctly apply the law regarding preexisting disorders found on entrance and that the result would have been different. In its decision, the Board found that the preexisting bilateral pes planus was not aggravated during service beyond the normal progress of the disorder. The Board acknowledged that the pes planus was described as moderate on the November 1976 entrance examination and described as severe on a December 1976 service treatment record. However, the Board also noted that the June 2010 VA examiner stated that these documentations do not show aggravation but that instead a difference of documentation between providers because moderate and severe are such subjective terms. The examiner added that there was no evidence of treatment for active service within one year of active service as well as no other post-service treatment for that disorder, and that X-rays of the feet by the radiologist have been read as normal. The Board also considered the moving party's assertion of in-service symptomatology and, as explained above, did not find him credible. Given the Board's findings, it again appears that the moving party is ultimately disagreeing with how the Board weighed the evidence, which cannot support a finding of CUE. In summary, for the reasons and bases expressed above, the Board finds that the July 2011 decision did not contain CUE as to the denial of entitlement to service connection for bilateral pes planus. The motion is accordingly denied. Whether a July 13, 2011, decision of the Board of Veterans' Appeals that denied entitlement to service connection for a neck disability contains CUE Whether a July 13, 2011, decision of the Board of Veterans' Appeals that reopened and denied entitlement to service connection for a back disability contains CUE The moving party argues that there was no medical evidence showing that his back disorder was not incurred in service and that the Board relied on its unsubstantiated medical opinion. To the contrary, however, the Board relied on a substantiated medical opinion - the June 2010 VA examiner's opinion that the low back disorder was less likely as not (less than a 50/50 probability) caused by or the result of active service. The moving party asserts that the Board should have granted service connection for the back disorder based on continuity of symptomatology and that the Board "bypassed" his lay testimony of continuity of symptomatology. While the Board did not specifically cite to 38 C.F.R. § 3.303(b) and did not make a specific finding that there was no finding of "continuity of symptomatology," the result would have been no different had the Board engaged in such discussion. It is not undebatable that service connection was warranted for a neck disorder based on continuity of symptomatology because the Board did generally consider the moving party's assertion of neck symptomatology since service but found him not credible. Specifically, the Board noted that the Veteran was asserting continuous neck pain during and since service, but that he denied any problems other than the low back at the 1978 VA examination. The Board found the more contemporaneous statements by the Veteran to be inherently more credible than the assertions put forth in support of his appeal. Put simply, it is not undebatable that the moving party's reporting of continuity of symptomatology was credible and that service connection would have been granted for a neck disorder based on continuity of symptomatology. Similarly, the Board noted that the Veteran had recently asserted that his low back symptoms were so disabling after service that he had to be prodded by his mother to file a claim. The Board found such report to be far out of proportion to his 1978 report that his pain and discomfort in the low back had reduced in severity and frequency since service. Furthermore, his recent assertion that he had been prescribed pain killers for his neck and back by VA in 1977 was found to be in conflict with his 1978 statement that he had not received any treatment since discharge. In addition, the Board also relied on the clinical findings of the 1978 VA examiner, who found no evidence of thoracic or lumbar spine disabilities on x-ray or physical examination. The Board also noted several other pieces of evidence regarding his medical history, such as treatment records documenting several back injuries between 2003 and 2006. Finally, the Board also discussed the 2010 VA medical opinion, which was based on a review of the claims folder and the results of physical examination. Given the conflicts between the Veteran's past statements and the negative findings during the 1978 VA examination, it cannot be said that the Board's conclusion to place more probative weight on the 2010 VA opinion than on the Veteran's assertions of continuous symptoms was undebatably wrong, and that service connection should have been granted based on continuity of symptomatology. The moving party states that the Board did not explain the criteria used to determine that the back and neck disabilities were not the result of his in-service fall or sufficiently explain why the disorders were due to post-service intercurrent causes. However, the Board noted that the June 2010 VA examiner opined that the back and neck disabilities were less likely as not (less than a 50/50 probability) caused by or the result of active service, and the Board found such opinion to be consistent with the more credible evidence of record. In light of that medical evidence addressing whether service connection was warranted for the two disabilities, the Board's duty did not extend to having explain whether the evidence showed that the back and neck disabilities were due to a particular post-service cause. Therefore, the Board identified the medical evidence it relied on its decision to determine the back and neck disabilities were not incurred in active service. The moving party argues that the Board required to apply the presumption of soundness as to the back and neck disabilities and did not explain whether the presumption of soundness had been rebutted by clear and unmistakable evidence. Neither a back nor a neck disability was noted on the entrance examination and there was no medical evidence or assertion by the moving party that the back and neck disabilities preexisted his active service. Therefore, the Board had no reason to address whether the presumption of soundness had been rebutted and, in fact, proceeded under the assumption that he was sound. The moving party additionally argues that he was entitled to the benefit of the doubt pursuant to 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102. Although the Board did not cite to 38 C.F.R. § 3.102 in particular, the Board found that the preponderance of the evidence was against the claims and that the benefit of the doubt doctrine was not applicable. As noted above, there was evidence showing that was not undebatable that the back and neck disabilities were incurred in or aggravated by active service. Thus, there was evidence that there was not reasonable doubt as defined in 38 C.F.R. § 3.102 - an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim - as to these two claims. The moving party is merely expressing disagreement with the weighing of the evidence. In summary, for the reasons and bases expressed above, the Board finds that the July 2011 decision did not contain CUE as to the denial of entitlement to service connection for a neck disability and as to the reopening and denial of entitlement to service connection for a back disability. The motions are accordingly denied. ORDER The motion to revise the Board's July 2011 decision to deny entitlement to service connection for bilateral pes planus on the basis of clear and unmistakable error is denied. The motion to revise the Board's July 2011 decision to deny entitlement to service connection for a neck disability on the basis of clear and unmistakable error is denied. The motion to revise the Board's July 2011 decision to reopen and deny entitlement to service connection for a back disability on the basis of clear and unmistakable error is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs