Citation Nr: 1325106 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 13-14 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether an August 2009 decision of the Board of Veterans' Appeals denying a request of entitlement to service connection for a disability manifested by shortness of breath, tingles all over, and bitemporal head pain should be revised or reversed on the grounds of clear and unmistakable error (CUE). 2. Whether an August 2009 decision of the Board of Veterans' Appeals denying a request of entitlement to service connection for service connection for residuals of a left knee injury should be revised or reversed on the grounds of CUE. (The moving party's appeal as to claims of entitlement to service connection for a heart disorder and hypertension, will be addressed in a separate Board decision.) REPRESENTATION Moving party represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The moving party is a Veteran who served on active duty from January 1969 to April 1972. These matters come before the Board of Veterans' Appeals (Board) based on its original jurisdiction to decide motions for CUE in a prior Board decision. 38 U.S.C.A. § 7111(c). The Board notes that a separate decision is being issued with respect to the issues of entitlement to service connection for a heart disorder and hypertension. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In a decision issued on August 13, 2009, the Board denied service connection for a disability manifested by shortness of breath, tingles all over, and bitemporal head pain. 2. In a decision issued on August 13, 2009, the Board denied service connection for residuals of a left knee injury. 3. The record does not establish that the August 13, 2009, Board adjudicator declined to consider any of the correct facts, as they were known at that time, or incorrectly applied the governing statutes and regulations then in effect such that the outcome of the claims would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. The criteria have not been met for revision of the Board's August 13, 2009 decision, such that service connection is warranted for a disability manifested by shortness of breath, tingles all over, and bitemporal head pain. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2012). 2. The criteria have not been met for revision of the Board's August 13, 2009 decision, such that service connection is warranted for residuals of a left knee injury. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). An allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision. Thus, the provisions of the VCAA are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165 (2001) (an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process."). Moreover, as a CUE analysis depends upon the evidence and information of record at the time of the original decision, there is no assistance which can be provided at this time. No additions to the record may be considered. II. The Merits of the Moving Party's Motion The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The moving party asserts that there was CUE in the August 13, 2009 Board decision denying his service connection claims for a disability manifested by shortness of breath, tingles all over, and bitemporal head pain; and residuals for a left knee injury. Relevant to the disability manifested by shortness of breath, tingles all over, and bitemporal head pain claim, the Board found that there was no competent medical evidence that such disability was attributed to a current diagnosis other than the already service-connected anxiety neurosis. The Veteran alleges CUE with this decision, on the basis that the disability is attributed to a diagnosis other than the service-connected anxiety. He alleges that the disability is attributed to his hypertension and heart disease. Relevant to the residuals of left knee injury, the Board found that the record did not indicate or suggest any nexus between the Veteran's current left knee injury residuals and his military service. The Veteran alleges CUE with this decision, on the basis that a 1981 left knee X-ray showed an old injury. Under 38 U.S.C.A. § 7111, a prior Board decision may be reversed or revised on the grounds of CUE. 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. §§ 20.1400-1411. The motion alleging CUE in a prior Board decision 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 different but for the alleged error. 38 C.F.R. § 20.1404(b). The determination of whether a prior Board decision was based on CUE must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). CUE is a very specific and rare kind of error. It is the 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); see also Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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 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 CUE. 38 C.F.R. § 20.1403(c); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (expressly holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and 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, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See 38 C.F.R. § 20.1404(b). Such allegations are not properly dismissed as pleading errors when the request for revision otherwise meets the requirements of a properly pled request for revision; rather, a request for revision based on such CUE theories is to be denied on the merits because such purported errors cannot constitute CUE. Canady v. Nicholson, 20 Vet. App. 393, 402 -403 (2006). At the time of the August 13, 2009 Board decision, the laws and regulations governing service connection claims were essentially the same as now. The August 13, 2009 Board decision noted that service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a); to prevail on the issue of service connection on the merits, there must be: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board's decision found that the Veteran was seen in service for complaints of tingling all over, shortness of breath, and bitemporal head pain on multiple occasions. On December 1971 separation examination, it was noted that the Veteran was recommended for further evaluation for mental evaluation for a neurology evaluation due to his spells. In December 1971, per the recommendation, the Veteran was examined. He complained of bitemporal head pain, tingling all over, and shortness of breath. Physical examination revealed normal neurological and electroencephalogram studies. Hyperventilation Syndrome, secondary to chronic and acute anxiety was given. On a March 1972 treatment record, the Veteran's complaints of tingling all over and having heavy breathing were noted. He was subsequently shown to have Hyperventilation Syndrome. Post-service treatment records include a June 2001 VA treatment record that documents the Veteran's complaints of shortness of breath, tingling all over, and bitemporal head pain. The Board noted that Hyperventilation Syndrome secondary to chronic and acute anxiety had been diagnosed; however the record contained no diagnosis of shortness of breath, tingling all over, and bitemporal head pain except that which had been associated with the Veteran's service-connected anxiety neurosis. Per relevant regulations, VA scheduled the Veteran for an examination. By way of February 2008 correspondence, the Veteran was informed of the consequences should he fail, without good cause, to report to such examination. VA informed him that the claim would be based on the evidence of record. See 38 C.F.R. § 3.665. The Veteran refused to report to the scheduled examination. Based upon the evidence in the record, the Board found that the medical evidence of record did not establish that the Veteran had a disability manifested by shortness of breath, tingling all over, and bitemporal head pain. There was no current diagnosis other than the anxiety neurosis that the symptoms of shortness of breath, tingling all over, and bitemporal head pain were attributed. Turning to the Veteran's allegations of CUE, the Board notes that the Veteran alleges that the disability is attributed to his hypertension and heart disease and not his service-connected anxiety. This allegation essentially involves a disagreement as to how the facts were weighed or evaluated, and as such they cannot constitute CUE. 38 C.F.R. § 20.1403(d). As noted, the Veteran attributes the disability to his hypertension and heart disease; even if such were the case, it would not compel a different result. Service connection for hypertension and heart disease was not established at the time of the August 2009 Board decision. Relevant to the Veteran's left knee disability claim, the Board's August 13, 2009 decision noted that the Veteran's service treatment records were reviewed. It was shown that the Veteran sustained a left knee injury in January 1970. During the visit he complained of pain and had medial superior swelling and decreased range of motion secondary to pain. There was no evidence of a tear. An X-ray revealed some fluid accumulation and soft tissue swelling but was negative for fracture or dislocation. It was noted that the Veteran returned to sick call in April of 1970 with continued left knee complaints. On December 1971 service separation examination, the Veteran offered no complaints of left knee abnormality, and clinical evaluation of the lower extremities was normal. Post-service treatment records document symptoms and treatment of a left knee injury. Private treatment records dated in 2000 document the Veteran's left knee treatment for an injury secondary to a motor vehicle accident. Again, the Veteran was scheduled for an examination in reference to his claim. He refused to report. The Board found based on the evidence of record that there was no medical evidence that causally related the current left knee disability to his active service. There was no opinion of record that related his current left knee disability to the left knee injury sustained during service. The Veteran's allegations of CUE with this decision rely on the fact that a 1981 X-ray shows an old left knee injury. A review of the claims file does not reveal a 1981 left knee X-ray. The Board notes however, that there is a January 1978 X-ray that shows normal knees; no abnormalities. The Veteran's current contention amounts to a disagreement as to how the facts were weighed or evaluated, and such does not constitute CUE. 38 C.F.R. § 20.1403(d). Even if there was a 1981 X-ray that showed an old injury, it would not compel a different result. The issue would still be whether or not there was medical evidence to include an opinion of record that relates the current left knee disability to the Veteran's active service, to include the left knee injury noted therein. There was no such medical opinion. The Board considered the Veteran's statements suggesting that he experiences shortness of breath, tingling all over, bitemporal head pain, and residuals from a left knee injury; all of which are related to his military service. The Board did not find his statements to be probative. The Board found that such opinions required competent medical evidence as to whether there was current disability and whether such disabilities were related to service, to include any noted in-service complaints. In light of the foregoing, the Board finds that the Veteran has not established that any of the correct facts, as they were known at the time, were not before the Board on August 13, 2009, and has not shown that, but for incorrect application of statutory or regulatory provisions, the outcome of the claims would have been manifestly different. Accordingly, the Board concludes that there was no CUE in the August 13, 2009 decision that denied entitlement to service connection for a disability manifested by shortness of breath, tingles all over, and bitemporal head pain; and residuals of a left knee injury. ORDER The Veteran's motion to revise or reverse the August 13, 2009 decision that denied entitlement to service connection for a disability manifested by shortness of breath, tingles all over, and bitemporal head pain is denied. The Veteran's motion to revise or reverse the August 13, 2009 decision that denied entitlement to service connection for residuals of a left knee injury is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs