Citation Nr: 1326353 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 13-17 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether an October 6, 1952 rating decision should be revised or reversed due to clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Stephnen S. Pennington, attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active military service from January 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that in a June 2009 Board decision, the Board previously denied the issue of whether there was CUE in March 1951, July 1951, July 1952, October 1952 and May 2006 rating decisions. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). While on appeal at the Court, the Veteran abandoned his previously allegation of CUE and asserted a new allegation of CUE contending that he did have lumbosacral strain at the time of the prior decision and the RO failed to apply the appropriate rating criteria. In September 2010, the Court affirmed the Board's prior decision and dismissed the Veteran's appeal. As noted in dicta contained in the September 2010 Court Order, the Veteran has raised a separate and distinct CUE theory from the one previously argued. Once there is a denial of a CUE claim, under the principle of res judicata, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39, 44 (1998); Russell v. Principi, 3 Vet. App. 310, 315 (1992) ("[o]nce there is a final decision on the issue of 'clear and unmistakable error' because the [agency of original jurisdiction] decision was not timely appealed, or because a [Board] decision not to revise or amend was not appealed to this Court, or because this Court has rendered a decision on the issue in that particular case, that particular claim of 'clear and unmistakable error' may not be raised again."); see also Flash v. Brown, 8 Vet. App. 332, 341 (1995). However, the principle of res judicata bars refiling only as to that particular assertion of CUE; it does not prohibit a claimant from presenting another theory of CUE so long as it is separate and distinct. Flash, 8 Vet. App. at 341; Andre v. Principi, 301 F.3d. 1354, 1361 (Fed. Cir. 2002). In fact, in Hillyard v. Shinseki, No. 08-1733 (U.S. Vet. App. Mar. 29, 2011), the Court recently reiterated VA's position that the number of motions to revise based on clear and unmistakable error that a claimant may bring against a RO decision (as opposed to a Board decision), is unlimited, so long as each new challenge involves a distinct theory of clear and unmistakable error. Therefore, the Veteran is not barred in the present case from alleging his new theory of CUE since it is separate and distinct from the previous theory considered. 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 an October 1952 rating action, the RO continued a noncompensable disability evaluation for the Veteran's service-connected low back disability. 2. The RO's continuation of an zero percent rating for the veteran's low back disability, rather than a 10 percent evaluation, from the VA Schedule for Rating Disabilities in its October 1952 rating action was not reasonably supported by the medical evidence of record at the time of that decision; the evidence of record including testimony given at an August 1952 hearing showed characteristic pain on motion, which undebatably warranted a 10 percent rating under the applicable rating criteria in effect at that time. CONCLUSION OF LAW The RO's October 1952 decision contains CUE insofar as it did not assign an initial 10 percent disability rating for the veteran's service-connected low back disability; accordingly, an effective date of August 22, 1952 for a 10 percent rating is warranted. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5294, 5295 (1952); 38 C.F.R. §§ 3.304(b); 3.322 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). However, the VCAA does not generally apply in petitions for revision due to CUE in a prior RO rating decision, as observed by the U.S. Court of Appeals for Veterans Claims (Court). See Parker v. Principi, 15 Vet. App. 407 (2002), citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); See also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Thus, the Board may fairly adjudicate on the merits the Veteran's CUE petition as it involves the instant matter. Laws and Regulations A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302 (2012). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. 38 U.S.C.A. § 5109A; 38 C.F.R. §§3.104(b), 3.105(a). If an earlier decision contained clear and unmistakable error, the prior decision will be reversed or amended, and for the purposes of authorizing benefits, the rating or adjudicative decision that constitutes a reversal of the prior decision on the grounds of clear and unmistakable error has the same effect as if the correct decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.105(a); 3.400(k). A claim of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1997). Therefore, a claimant who seeks to obtain retroactive benefits based on clear and unmistakable error has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). See also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of clear and unmistakable error). Clear and unmistakable error 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be clear and unmistakable. Id. The claimant must offer some persuasive reasons as to why the result would have been manifestly different but for the alleged error, unless it is the kind of error that, if true, would be clear and unmistakable on its face. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Fugo, 6 Vet. App. at 44. Clear and unmistakable errors "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) (en banc). In order to find clear and unmistakable error in a prior adjudication, it must be determined (1) that either the correct facts known at the time or constructively 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 prior 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); Russell, 3 Vet. App. at 313-14. A determination that there was clear and unmistakable error 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). That is, the laws in effect at the time of the RO or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not clear and unmistakable error to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). A breach of the VA's duty to assist cannot form a basis for a claim of clear and unmistakable error. Baldwin, 13 Vet. App. at 7; Shockley v. West, 11 Vet. App. 208, 213 (1998); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). Such a breach creates only an incomplete rather than an incorrect record. See Caffrey, 6 Vet. App. at 382. In order to reasonably raise a claim of clear and unmistakable error, the claimant must provide some degree of specificity as to what the alleged error is. If a claimant fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice. Simmons v. Principi, 17 Vet. App. 104, 114 (2003). Factual Background and Analysis The Veteran contends that October 6, 1952 rating decision contained clear and unmistakable error as the RO failed to correctly apply 38 C.F.R. § 4.71a Diagnostic Code 5295 (rated by comparison with sacroiliac injury and weakness at Diagnostic Code 5294) where the record in existence at the time demonstrated pain on motion. Specifically, in his request for revision of the October 1952 rating action, the Veteran's attorney requested the Board to "direct the VA to assign a 10 [percent] rating for his residuals of back injury (lumbosacral strain) from August 22, 1952 to November 9, 1952." Upon review of the record, the Board concludes that the requested revision is warranted. The Veteran's service treatment records show that the Veteran was treated in September 1945 with complaints of a backache due to an old injury. X-ray examination was essentially negative. The Veteran was referred for physical therapy. An appointment card indicates he was scheduled for five physical therapy sessions. The Veteran underwent a separation examination on November 4, 1945, only one day prior to his actual separation from active service. At that time, he reported having incurred a back injury in December 1944 when struck in the back with a bomb that was being swung around on a crane. It was noted that the Veteran was hospitalized in France and at the Wakeman General Hospital. By his report, heavy lifting and work produced pain and stiffness. However, on physical examination, no abnormality of the back was found. The Board notes that the Veteran appears to refer to this examination as having been done by a VA physician. The Board notes, however, that VA did not conduct separation examinations at that time. Furthermore it is clear from the examination report that it was conducted and military personnel as indicated by the rank of major after each official's name. The Veteran filed his original claim for service connection for residuals of a back injury in November 1945, which was denied in a December 1945 rating decision. The Veteran did not appeal that decision. In September 1950, he filed a claim to reopen for service connection for a back condition. By rating action issued in March 1951, service connection for residuals of a back injury (hereafter service-connected low back disability) was granted and evaluated as zero percent disabling. The effective date assigned was November 6, 1945, the day after the Veteran's discharge from service. In February 1951 the Veteran underwent a VA examination. He presented with complaints of frequent low back pain. On examination his posture was normal and his low back showed no deformity. There was no tenderness to swelling or muscle atrophy. He was unable to flex more than 180 degrees to 130 degrees due to lower back pain. X-rays of the lumbosacral spine were negative. The diagnosis was residuals of low back injury. In June 1951, the Veteran submitted a statement that he was receiving outpatient treatment at VA. This communication was accepted as a claim for a compensable disability rating for the service-connected low back disability. The Veteran's claim was denied by the RO in a July 1951 rating decision. In April 1952, the Veteran filed a claim for an increased disability rating for his service-connected low back disability, submitting additional medical evidence in support of his claim. In a January 1952 letter, a private physician noted that the Veteran had a decompression of his lumbar muscles "undoubtedly superimposed upon an unstable lumbosacral mechanism". A VA examination was conducted in May 1952 that also diagnosed the Veteran to have a lumbosacral strain. He noted that the pain was "nagging". On examination, the Veteran walked around the office without any apparent difficulty. His posture was good and his muscle development was "fairly good" in his back. However, the muscles in his thighs were weak and only very little resistance was necessary to keep him from lifting the limbs against gravity. There was no spasm of paravertebral muscles. Forward bending was to 100 degrees with complaints of aching to the spine. Straight leg raise was to 105 degrees bilaterally. The examiner noted that this limitation of motion was not due to pathology in the back but rather was due to weakness of muscles. There was full range of motion in other movement of the spine and no segmental restrictions. By rating decision issued in July 1952, the RO again denied a compensable disability rating for the Veteran's service-connected low back disability. In August 1952, the Veteran's representative requested an informal hearing before the Rating Board on behalf of the Veteran. That hearing was held August 22, 1952, at which the Veteran testified as to the problems he was having with his low back. By rating decision issued in October 1952, the RO confirmed and continued the denial of a compensable disability rating for the Veteran's service-connected low back disability. At the time, the Veteran was rated under Diagnostic Codes 5295 of the 1945 Schedule for Rating Disabilities, which became effective April 1, 1946. The version of Diagnostic Code 5295 in effect at the time of the October 1952 rating decision directed the rating specialist to rate lumbosacral strain by comparison with sacroiliac injury. The version of Diagnostic Code 5294 in effect at the time of the October 1952 rating decision assigned the following ratings for sacroiliac injury and weakness: 0 percent with slight subjective symptoms only; 10 percent with characteristic pain on motion; 20 percent with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; and 40 percent, severe, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing, or irregularity of joint space, or some of the above with abnormal mobility on forced motion. In addition to the foregoing, Diagnostic Code 5292 provided for ratings for limitation of motion of the lumbar spine as follows: 10 percent for slight limitation; 20 percent for moderate limitation; and 40 percent for severe limitation. See 1945 Schedule for Rating Disabilities. The Veteran contends that the RO Board did not apply the correct diagnostic code and that at a 10 percent evaluation should have been assigned for low back disability under either Diagnostic Code 5294 or 5295 based on the VA examination's findings of characteristic pain on motion. Specifically, he contends that an effective of August 22, 1952, is warranted for a 10 percent rating for his back disability. In essence, this contention appears to be that the Board cannot ignore applicable VA regulations that would help the moving party's claim. See Franklin v. Brown, 5 Vet. App. 190 (1993). Upon review of the record as it existed at the time of the October 1952 rating decision, the Board concludes that the Veteran's August 22, 1952 testimony of complaints of constant low back pain with activity clearly equate to characteristic pain on motion as contemplated by a 10 percent rating under Diagnostic Code 5294. The evidence at the time of the October 1952 rating decision undebatably showed low back pain with motion. However, in the October 1952 rating action, the RO did not consider Diagnostic Code 5294 or 5295 when assigning a zero percent rating for the veteran's service-connected low back disability. As previously stated, the failure of the RO to correctly apply statutory and regulatory provisions extant at the time of the decision will be basis for revision due to CUE. Therefore, the question before the Board is whether the omission to consider rating the veteran's service-connected low back disability under Diagnostic Code 5294 for characteristic pain on motion of the low back constituted CUE. In the Board's view, it does. The failure of the RO to consider this evidence and Diagnostic Code 5292 was error and the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. In light of the above, it is indisputable that the RO failed to correctly apply statutory and regulatory provisions extant at the time of the October 1952 rating action. Accordingly, a revision of the October 1952 rating action to correct this clear and unmistakable error is warranted and a 10 percent rating is warranted from August 22, 1952. The Board notes that the Veteran has not asserted any error in the failure of the RO to assign a rating in excess of 10 percent or the failure to assign a compensable evaluation prior to August 22, 1952. On the contrary, the Veteran's counsel specifically asked for "VA to assign a 10[percent] rating for his residuals off back injury from August 22, 1952 to November 9, 2005." Under the circumstances of this case, and in light of the above, the Board agrees and finds that the record, as it was constituted at the time of the October 1952 rating decision, leads indisputably to the conclusion that the RO committed CUE in failing to assign an initial 10 percent evaluation under Diagnostic Code 5295 for characteristic pain on motion of the lumbar spine from August 22, 1952, as alleged by the Veteran. (CONTINUED ON NEXT PAGE) ORDER As the October 1952 rating decision that assigned an initial noncompensable disability rating for a low back disability contains clear and unmistakable error, insofar as it failed to assign a 10 percent disability rating for the Veteran's service-connected lumbar spine disability, entitlement to an effective date of August 22, 1952 for a 10 percent rating for a low back disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs