Citation Nr: 1325610	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  13-00 092A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Whether a January 10, 2013, decision of the Board of Veterans' Appeals (Board) should be reversed or revised due to clear and unmistakable error (CUE).


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The moving party served on active duty from October 1959 to January 1962.

This matter is before the Board in response to a motion for revision of a January 10, 2013 decision, in which the Board denied the moving party's claims of CUE in a December 2005 rating decision (denying entitlement to service connection for a disability of the lumbosacral spine) and entitlement to reopen a claim for service connection for a disability of the lumbosacral spine.
In April 2013, the Board notified the moving party that it had received his motion and granted him 30 days from the date of the letter to file a relevant response, including a request to review the claims file prior to filing a further response. The moving party was informed that if he did not respond within 30 days, the request for review would be referred to a Board member for a decision.

A May 2013 response from the moving party requested that the Board take the necessary action in resolution of his motion. Accordingly, the motion is ready for further review.

Please note 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 January 10, 2013, decision, the Board determined that there was no clear and unmistakable error in a December 2005 rating decision denying entitlement to service connection for a disability of the lumbosacral spine.

2. In a January 10, 2013, decision, the Board determined that the moving party was not entitled to reopen a claim of service connection for a disability of the lumbosacral spine.

3. On January 10, 2013, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied.


CONCLUSION OF LAW

The criteria have not been met for revision of the Board's January 10, 2013 decision. 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 CONCLUSION

VA's Duty to Notify and Assist

Generally, VA has a statutory duty to notify the moving party of the information and evidence necessary to substantiate his claim and to assist him in the development of that claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). However, an allegation of CUE is fundamentally different from any other kind of action in the VA adjudicative process.

An allegation of CUE is not a "claim," but rather a collateral attack on a final decision. It involves a legal challenge to a prior Board decision and does not involve acquiring or submitting any additional evidence. Therefore, VA's statutory duty to assist the moving party in the development of his claim is not applicable in the adjudication of a CUE motion. 38 C.F.R. § 1403(d)(2); see Livesay v. Principi, 15 Vet. App. 165, 178- 79 (2001).

The Merits of the Moving Party's Motion

The moving party alleges that in January 2013, the Board committed CUE because it failed to correctly apply statutory and regulatory provisions to a challenged December 2005 rating decision. The moving party further argues that the Board committed CUE because it failed to adequately consider new and material evidence, after noting a factual discrepancy, when denying the claim to reopen entitlement to service connection for a lumbosacral spine disorder. After carefully considering the motion in light of the record and the applicable law, the Board finds that it did not commit CUE, and the motion will be denied.

The evidence of record at the time of the December 2005 rating decision included a 1958 pre-induction examination report, and a 1959 induction examination report. No back complaints were made, and none were detected, during either examination.
The service treatment records also included Orthopedic Clinic records dating from November 1959 to March 1960, which document the moving party as complaining of pain in the thoracolumbar area for the past year following a motor vehicle accident. X-rays were within normal limits. Low back strain and lumbago were documented. No back complaints were made and no abnormalities were found on separation examination.

After service private medical records in October 1990 pertain to a workplace accident. In November 1990 a CT scan showed degeneration at L4-5 and a disc herniation. In December 1990, a private physician stated that the moving party had no more problems with his back after a transient bout of back pain in service until October 3, 1990, when he slipped and fell at his workplace.

The evidence also included private medical records in July 1991 that showed that a herniated lumbar disc due to injury at work in October 1990. In July 1991, a private physician again stated that the moving party's back trouble was related to the injury at work in October 1990.

In addition on VA examination in October 2005, the moving party stated that he had been unemployed since leaving his job as a machinist in 1992. The moving party stated that he had received treatment for back complaints during service, and on only one occasion in 1990, after service. X-rays of the lumbosacral spine showed congenital variant lumbosacral junction with multiple levels of degenerative changes, including facet arthropathy. The diagnosis was congenital variant lumbosacral junction (hemisacralization right L5) with multiple level degenerative disc disease and facet arthropathy. 

In an addendum in December 2005, the VA examiner stated that the congenital variant at the lumbosacral junction was not aggravated beyond the normal progression during service and that the current degenerative low back disability was not causally related to any incident of service, because the moving party's in-service complaints resolved within 8 months of onset with no residuals. The VA examiner stated that the history provided by the moving party downplayed the post-service injury and exaggerated the in-service treatment, and that the moving party's only back complaints after service were related to an injury in October 1990, nearly 30 years after service.


As a result, the RO denied service connection for a lumbosacral spine disability in the December 2005 rating decision. 

The moving party applied to reopen the claim in January 2008. The moving party claimed that there was CUE in the December 2005 rating decision and it should be reversed and alternatively that his claim for service connection should be reopened due to new and material evidence. 

In July 2008 the RO denied the petition for revision on the basis of CUE. The RO found that the December 2005 rating decision properly based on the available evidence of record at the time and the rules then in effect. The RO also denied to reopen his claim for service connection for a lumbosacral spine disability because there was no new and material evidence. 

In a January 10, 2013, decision, the Board denied the moving party's claim that there was CUE in the December 2005 rating decision which denied service connection for a lumbosacral spine disability. In so doing, the Board noted the moving party's contentions that the RO failed to make a specific finding that any increase in his pre-existing back condition was due to the natural progress of the disease. The Board found, however, that the RO denied the claim for service connection for congenital variant lumbosacral junction on the grounds that the current back disability was not incurred in, caused by, or aggravated beyond the natural progression of the disorder during active duty service. The Board noted that contrary to the moving party's contention, the RO did make a formal finding. The RO also found that, while there was a record of treatment for low back strain during service, there was no permanent residual or chronic disability subject to service connection. The Board concluded that the rating decision by the RO in December 2005, denying service connection for a disability of the lumbosacral spine, was not clearly and unmistakably erroneous, and reversal or amendment of the rating decision was not warranted.

In the January 10, 2013, decision, the Board noted that the additional evidence presented since the rating decision in December 2005 consisted of the following: statements of Dr. E.D., dated in June 2006, November 2008, and May 2011; a private medical record, dated in September 2008, showing arthritis by X-ray; and private medical records, documenting pain management for lumbar radiculitis, myofascial pain, sacroilitis, and lumbar spondylosis. The Board determined that all of the additional evidence presented was cumulative of the evidence of record at the time of the prior denial on the merits, or did not relate to the reason the claim was previously denied, that is, either aggravation of congenital back disability or relating the post-service back disability to service. Therefore, the evidence did not constitute new and material evidence under 38 C.F.R. § 3.156.

The Board has the authority to revise or reverse a prior Board decision on the grounds of CUE. 38 U.S.C.A. § 7111. The motion for such action may be filed at any time after the underlying decision is rendered. 38 U.S.C.A. § 7111; 38 C.F.R. 
§ 20.1400 .

Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Rules of Practice of the Board, at 38 C.F.R. Part 20 (2012). Rule 1403 of the Rules of Practice, found at 38 C.F.R. § 20.1403, relates to what constitutes CUE.

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 (2012).

There is a three-prong test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable, that is the type which, had it not been made, would have manifestly changed the outcome of the decision; and; (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

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) (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 clear and unmistakable. 38 C.F.R. § 20.1403(c) (2012). CUE "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992).

Rule 1403 offers the following examples of situations that are not CUE: (1) Changed diagnosis-A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) Duty to assist-The Secretary's failure to fulfill the duty to assist; (3) Evaluation of evidence-A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d).

Moreover, 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).

The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court also held in Fugo that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. at 44. 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).

A motion 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 an explanation of why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations, failure to give due process, failure to apply the benefit-of-the-doubt or any other general, non-specific allegations of error are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with these requirements shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(b).

A final and binding RO decision will be accepted as correct in the absence of clear and unmistakable error. Such a final decision may, however, be reversed or amended where evidence establishes that it was a product of clear and unmistakable error and the reversal or amendment will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105(a).

The moving party argues that the Board committed CUE because it failed to find CUE in the December 2005 rating decision which incorrectly denied the moving party's claim based on incorrect facts. Specifically, the moving party contends that the RO denied his claim in the December 2005 rating decision on the basis that "the medical evidence of record fails to show diagnosis for this condition, the extent to which it may be disabling, and whether it is related to an [in-service] condition, and denied the claim for entitlement to service connection for congenital variant lumbosacral junction (claimed as a back injury) on the basis that the medical evidence of record fails to show a history of treatment for congenital variant lumbosacral junction prior to separation from service." The moving party further contends that the December 2005 rating decision was CUE because it denied the claim for service connection based on the incorrect interpretation of evidence that "the medical evidence of record fails to show a history of treatment for congenital variant lumbosacral junction prior to separation from service." 

All of the moving party's allegations are based on his interpretation that the Board failed to recognize misinterpretation of facts by the RO adjudicator in December 2005. Perhaps most striking of these allegations is the moving party's assertion that the assignment of a "1" in his pre-separation physical examination report is indicative of the presence of a disability. Put plainly, the assertion is directly the opposite of what the moving party alleges. The assignment of a "1" indicates no disability. Odiorne v. Principi, 3 Vet. App. 456 (1992); (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).

The moving party's allegations  incorrectly characterizes the reasons for the denial in the December 2005 rating decision. The RO originally denied the claim because despite in-service treatment of a low back strain, there was no evidence of a chronic disability or permanent residual. The RO relied on the VA examiner's statement that the moving party's current disorder, congenital variant lumbosacral junction was not aggravated beyond normal progression by any incident in military service. The RO acknowledged the current disorder, the in-service complaints, and the VA examiner's opinion that the moving party's current disorder was congenital and not aggravated beyond normal progression. 

A disagreement as to how the facts were weighed or evaluated does not constitute CUE. 38 C.F.R. § 20.1403(d)(examples of situations that are not clear and unmistakable error include evaluation of evidence such as a disagreement as to how the facts were weighed or evaluated). The Board did not find CUE in the December 2005 rating decision because there was no evidence that the correct facts were not before the adjudicator, or that statutory or regulatory provisions were incorrectly applied such that the error was undebateable and would have manifestly changed the outcome of the decision. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). 

In addressing whether there was CUE in the December 2005 rating decision, in  January 2013 the Board correctly applied the standard for determining whether a previous decision contained CUE. The Board determined that the RO had correctly applied the appropriate statutory and regulatory provisions in the December 2005 rating decision and there was no error that was undebateable that would have manifestly changed the outcome of the decision. Therefore, with regard to the issue of whether the Board committed CUE in determining that there was no CUE in the December 2005 rating decision, the Board correctly applied the regulatory and statutory provision pertaining to CUE and the correct facts were before the Board, so there was no error that was undebateable or would have manifestly changed the outcome of the decision.  See Russell, supra. 

With regard to the issue of whether the Board committed CUE when it denied the claim for reopen of service connection, the moving party stated in his January 2013 letter that the RO's original denial, which was based on no evidence of a history of treatment for congenital variant lumbosacral junction prior to separation, was contrary to a statement made in the Board's January 10, 2013, decision which verified "[o]rthopedic [c]linic 1959 and 1960 treatment of veteran for thoracolumbar pain, low back pain, and lumbago, secondary to [in-service] vehicle accident." The moving party contends that the concession by the Board of the in-service treatment was new evidence that related to an unestablished fact that was necessary to substantiate the claim. Essentially, the moving party argues that the Board incorrectly weighed the facts in determining whether new and material evidence had been established. Therefore, the moving party contends that the Board clearly erred in determining that new and material evidence had not been submitted.

In the January 2013, decision, the Board determined that all of the additional evidence presented was cumulative of the evidence of record at the time of the prior denial on the merits, and did not relate to the reason the claim was previously denied, that is, either aggravation of congenital back disability or relating the post-service back disability to service. Therefore, the Board determined that the evidence did not constitute new and material evidence under 38 C.F.R. § 3.156. The correct facts, as they were known at the time, were before the Board, and 38 C.F.R. § 3.156 was considered and applied. To the extent the Veteran merely disputes how the evidence of record was weighed in application of 38 C.F.R. § 3.156 in the Board's January 2013 decision, a disagreement as to how facts are weighed or evaluated is not of itself legally sufficient to support a finding of CUE in a Board decision. See 38 C.F.R. § 20.1403(d).

In sum, the Board finds that the Board considered the provisions of 38 C.F.R. §§ 3.156 and 20.1403 in its January 10, 2013, decision and in so doing applied and weighed the proper facts as they were known at the time in a manner that was in accordance with the law and would be plausible to a reasonable person. Accordingly, a finding of CUE for failure to apply or properly consider 38 C.F.R. §§ 3.156 and 20.1403 in the Board's January 2013 decision that denied a finding of CUE in a December 2005 rating decision and denied reopen of a claim for entitlement to service connection for a lumbosacral disability is not warranted. See 38 C.F.R. § 20.1403; Fugo v. Brown, 6 Vet. App. 40, 44 (1993).


ORDER

The motion to reverse or revise the Board's January 10, 2013 decision on the basis of CUE is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs