Citation Nr: 1331167 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-17 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether the August 20, 1963 rating decision denying entitlement to service connection for cystic lung disease should be revised on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to November 1962 with prior Reserve service. He also had a period of active duty for training from March to September 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In that decision, the RO did not find clear and unmistakable error in an August 20, 1963 rating determination which found service connection was not warranted. In January 2012, the Veteran testified before the undersigned via a Board Videoconference hearing. A copy of the transcript is in the file and has been reviewed. 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). FINDING OF FACT The final August 20, 1963 RO rating decision, which denied service connection for cystic lung disease, considered the correct evidence and law as it then existed, did not involve an error that would undebatably have led to a different result if such error were not made. CONCLUSION OF LAW The August 20, 1963 RO rating determination denying service connection for cystic lung disease was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5019A (West 2002); 38 C.F.R. § 3.105(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is inapplicable to the claim of CUE in the August 20, 1963 rating decision. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). In any case, the RO sent the Veteran an April 2009 notice letter explaining CUE as a courtesy. CUE The Veteran alleges there was clear and unmistakable error in an August 20, 1963 rating decision that denied service connection for cystic lung disease. He did not file a notice of disagreement with this decision, and no new and material evidence was received within the year after that decision. The Board found in a July 2007 decision, that the August 1963 decision was final. In December 2004, the RO reopened and granted service connection for cystic disease of the left lung, status post left lower lobectomy at 10 percent disabling (effective November 21, 2001, the date of the reopened claim). In his February 2005 notice of disagreement with the effective date assigned in December 2004; the Veteran stated he should have been granted service connection in 1962 when he separated from service. In his appeal regarding the effective date (dated May 2006), he stated: The VA reviewer in making the determination in 1962 incorrectly interpret[ed] the medical evidence of record and made a[n] error in the denial that was finally corrected in a grant of benefits for the left lung condition. This was addressed by the VA examiner on the compensation exam [from 2004]. In its July 2007, decision the Board referred the CUE claim and denied the claim for an earlier effective date. At the October 2009 decision review officer (DRO) hearing, the Veteran stated he was not aware of a lung condition prior to service. (Transcript, p 2.) He referenced the positive opinion by a VA doctor from the October 2004 VA examination. On his June 2011 appeal form, he relied on the 2004 VA examination report to support that the X-rays in service were incorrectly interpreted. He stated his X-rays at enlistment showed a normal chest and lungs. His condition was likely due to an infection of the lungs in the military. "This is all a matter of my service records." The RO in 1963 denied the claim even though they had the same information as the 2004 VA examiner. At the January 2012 Board hearing, the Veteran again cited to the 2004 VA examination for support that an error was made, because X-rays were interpreted incorrectly. (Transcript, p 3.) The 1962 X-rays showed an infection had developed in the lung while he was in service. (Transcript, p 4.) Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 5109A, 38 C.F.R. § 3.105(a). CUE 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Fugo, at 44. The Court of Appeals for Veterans Claims (Court) has put forth the following three-pronged test to determine whether there was CUE in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existing at that time were incorrectly applied, (2) an error occurred based on the record and the law that existed at the time of the prior adjudication in question, and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). In order to prevail in a claim for CUE, all three of the above prongs must be met. Id. A breach of a duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). A CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and that an incomplete record, factually correct in all other respects, is not CUE. Id. at 1346. Also, disagreements as to how facts are weighed do not constitute CUE. Russell, 3 Vet. App. at 313-14. The Board is to consider only the evidence on file at the time of the challenged decision. Russell, 3 Vet. App. at 314; see also 38 C.F.R. §§ 20.1403(b), 20.1405(b) (2013) (regarding CUE in Board decisions). The evidence need not have been specifically addressed or discussed by RO's decision. According to Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000), ROs are not required to specifically mention in their rating decisions the evidence that they considered. See also Hauck v. Nicholson, 403 F.3d 1303 (Fed. Cir. 2005) (noting that rating decisions were not required to set forth in detail the factual bases for their decisions before the 1990 effective date of 38 U.S.C.A. § 5104(b)). The laws at the time of the RO decision are considered in determining whether there was CUE. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010). The evidence of record at the time of the August 20, 1963 rating determination included service treatment records; a January 1963 VA examination report; and the Veteran's December 1962 claim. Service department chest X-rays in January 1957, August 1957 and September 1959 conducted in conjunction with medical examinations (RMEs). The September 1959 report of medical history (RMH) noted pleurisy in 1954; he wrote that he was hospitalized and discharged without recurrence. On examination for entry on to active service in September 1959, it was reported that the Veteran had had pleurisy in 1955, but there had been no known sequelae. A service treatment record shows that while the Veteran was in Germany in July 1962, he complained of sharp pain above pericardium that had been present for five weeks. It was originally intermittent but was now constant. Sputum cultures showed pseudomonas. An X-ray and other diagnostic tests were interpreted as showing localized emphysema in the left lower lobe and hospitalization was recommended. In August 1962, an X-ray was interpreted as showing a clearing of fine nodular infiltration involving upper half of lower lobe field. A service treatment record dated August 23rd stated the Veteran was to have a "med board" due to his pulmonary emphysema diagnosis. A bronchoscopy and bronchogram did not reveal the cause of the emphysema. He was to be evacuated to the United States for further studies. An August 29th notation stated that pre-induction and other early films were received and read as "normal" but reveal the radiolucency in one left lower lobe area with slight displacement of heart being present. "This now makes this EPTS and probably a cystic disease." Pseudomonas had been cultured and were to be considered pathogenic. The diagnosis was congenital cystic disease of lung which did not occur in the line of duty but existed prior to service. It was not aggravated by military service. A narrative summary of the hospitalization from July 23rd to August 29th 1962 also states that medical personnel looked at his enlistment X-rays and found radiolucency in the left lower lobe that was present as far back as 1957. An August 1962 medical board proceeding yielded a diagnosis of congenital cystic disease of the lung, which existed prior to service and was not aggravated by active duty. In September 1962, the Veteran was received at a military hospital in the United States; an initial record noted his chest pain had resolved but he had some dyspnea after three flights. In October, an impression was pulmonary cyst, left lower lobe, probably congenital. An undated and untitled report summarized his illness and treatment and recommended him to be released for duty as the issue seemed to have resolved. The October 1962 RME noted an attached clinical summary regarding the lungs and chest as well as that it was ultimately recommended he be discharged from hospital and returned to active duty with no change in profile. In November 1962, another medical board proceeding record showed the board determined he was medically fit for further military service in accordance with current medical fitness standards. The diagnosis was again congenital cystic disease of the lung which existed prior to service, was not caused by service, and was not aggravated by active duty. The Veteran's DD 214 notes service in the United States and Europe only. In December 1962, the Veteran filed his original claim for service connection for "cyst on left lung." In January 1963, the Veteran received a VA examination. The examiner noted the Veteran's extensive pulmonary work up in service and that it was felt that his condition existed prior to service. Physical examination revealed a normal chest except for diminished breath sounds in the lower base of the left lung; otherwise auscultation was normal. He did not have shortness of breath. X-rays showed irregular lucencies consistent with cystic disease of the lung. The diagnosis was cystic disease of the lung. In August 1963, the RO noted the 1959 RMH showed the Veteran was hospitalized for pleurisy in 1954. The RO decision reflected he was hospitalized in July 1962 with a complaint of chest pain. X-rays showed a large cyst of the lower lobe. The RO noted the service department referred to pre-induction film which revealed radiolucency in the left lower lobe area and the diagnosis of congenital cystic disease of the lung. Also noted was that the Veteran was ultimately discharged for expiration of term of service. The disability was determined to have preexisted service and been congenital in nature. In August 1963, the RO advised the Veteran that his claim had been denied because his lung condition was not a disability for which compensation could be paid. Analysis The Veteran's service dates establish that he is a peacetime veteran and would have been considered as such at the time of the 1963 decision. 38 U.S.C. § 101(9) (1963) (establishing dates of the Korean Conflict to be from June 27, 1950 to January 31, 1955). The pertinent statutes that address peacetime disability compensation are 38 U.S.C. §§ 331, 332 (1963). These laws are unchanged from today's statutes. See 38 U.S.C.A. §§ 1131, 1132 (West 2002) (note that 38 U.S.C.A. § 1137 (West 2002), added in 1966, essentially nullified these laws and allowed for the application of wartime presumptions for peacetime veterans). In pertinent part, 38 U.S.C.A. § 331 (now codified at 38 U.S.C.A. § 1131) stated that compensation shall be paid for disability resulting from disease contracted in line of duty, or for aggravation of a preexisting disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war. Section 332 (now codified at 38 U.S.C.A. § 1132) provided that every person employed in the active military, naval, or air service for six months or more during peacetime 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 the time of the examination, acceptance and enrollment, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. The provisions of 38 C.F.R. § 3.305(a) (1963), addressed direct peacetime service connection. Some medical principles are "so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary." Specifically mentioned was that "notation or discovery during service of such residual conditions" like scars, fibrosis of the lungs, etc. When there is "no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service ..." Finally congenital and developmental defects are singled out as not being diseases or injuries under the law. 38 C.F.R. § 3.305(c). With regard to the presumption of soundness and peacetime service the regulation provided that: A peacetime veteran who has served 6 months or more 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 the time thereof, or where evidence or medical judgment, as distinguished from medical fact and principles, establishes that an injury or disease preexisted service. Any evidence acceptable as competent to indicate the time of existence or inception of the condition may be considered. Determinations based on medical judgment will take cognizance of the time of inception or manifestation of disease or injury following entrance into service, as shown by proper service authorities in service records, entries or reports. Such records will be accorded reasonable weight in consideration of other evidence and sound medical reasoning. Opinions may be solicited from Veterans Administration medical authorities when considered necessary. 38 C.F.R. § 3.305(b). Only a slight change was made to the regulation effective March 25, 1963; this change required service to have been active and continuous. See 38 C.F.R. § 3.305(b) (March 25, 1963). Regardless, the change is of no consequence in this case as the Veteran had continuous, active service for over six months. Because a lung disease was not identified on the examination when the Veteran was accepted for service, the presumption of soundness was potentially applicable. 38 U.S.C.A. § 1132 (formerly § 332). It was not applicable to peacetime service; however, if there was evidence or medical judgment warranting a finding that the disease or injury preexisted service. At the time of the 1963 decision, the RO had before it service treatment records that included medical opinions to the effect that the Veteran's lung condition had pre-existed service. These opinions were supported by interpretations of pre-service X-rays and the report of pleurisy prior to service. The RO had before it no medical opinion that a lung condition had had its onset in service. Hence, the RO had a basis for interpreting the evidence and medical judgment as showing that the lung condition pre-existed service. It was not CUE under the then existing evidence and law for the RO to have concluded that the lung condition pre-existed service. The RO did not make a specific finding as to whether the pre-existing lung condition was aggravated in service. This was apparently because the RO found the condition was congenital and therefore not a disability subject to service connection. Subsequent to the RO's decision the Court and VA's General Counsel interpreted the prohibition on compensation for congenital defects as not prohibiting service connection for congenital diseases. Monroe v. Brown, 4 Vet. App. 513 (1993); VA Gen. Couns. Prec. 82-90 (July 18, 1990) (originally issued as VA Gen. Couns. Prec. 1-85 (Mar. 5, 1985)). These after the fact interpretations were potentially applicable to the RO's 1963 decision. See our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment. See Rivers v. Roadway Express, 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) ("A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction."); Patrick v. Nicholson, 242 Fed. Appx. 695 (Fed. Cir. 2007) (unpublished) (the court's interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment and must be considered in determining whether a decision made prior to the court interpretation was a product of CUE). The question is whether if the RO had determined that the lung condition was a congenital disease, would it have had to grant service connection. Inasmuch as the RO had a basis (as discussed above) for finding that the condition pre-existed service, it could only have granted service connection by finding that the condition was aggravated in service. The RO had before it medical opinions that the pre-existing lung condition was not aggravated in service and no medical opinion to the contrary. The post-service VA examination did not provide a specific opinion as to whether there had been aggravation, but the examination findings and pulmonary function tests were essentially normal; notwithstanding the Veteran's reports of occasional symptoms. The medical opinions provided a basis for finding that there had not been aggravation of the pre-existing condition in service. The court subsequently held that a bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness now applicable to all Veterans with service after December 31, 1946. Miller v. West, 11 Vet. App. 345 (1998); see 38 U.S.C.A. § 1137 (West 2002) (added March 3, 1966). In the instant case; however, the RO was not required under then existing law to find clear and unmistakable evidence that the lung condition had not been aggravated. Further, the opinions in the instant case were provided after extensive hospitalization and opinion providers review of the history. Because the RO had a basis under the then existing law and evidence for finding that there was no aggravation, its conclusions with regard to a congenital condition were not outcome determinative. It would still have had a basis for denying the claim on the basis that it had pre-existed service and not been aggravated. This is not to say that the Board would have reached the same conclusions as the RO; but only that the RO's decision was not CUE. The Veteran has cited to the October 2004 VA examination opinion as showing that the RO's 1963 decision was the product of CUE. The Veteran has noted the 2004 opinion that previous examiners had misinterpreted his X-ray examinations. The 2004 examination report was obviously created after the 1963 decision, and the failure to consider the report could not provide a basis for finding CUE in the 1963 decision. Russell, 3 Vet. App. at 314. While the Veteran also has asserted that in-service clinicians and the 1963 VA examiner may have misinterpreted X-rays in determining that he had a pre-existing disability that was not aggravated, the RO had no basis at the time of its 1963 decision to find that the medical opinions were flawed. Russell, 3 Vet. App. at 313-14. To the extent the Veteran is arguing that the RO failed to provide an adequate examination in 1963, a failure in the duty to assist him with the development of his claim could not constitute CUE. See Cook, 318 F.3d 1334, 1345-47. Ultimately the Board does not find any basis for concluding that there was CUE in the August 20, 1963 rating decision. ORDER The August 20, 1963 rating decision, which denied service connection for cystic disease of the lung, did not involve CUE, and the appeal is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs