Citation Nr: 1331286 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 13-04 534 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board's June 2012 decision denying entitlement to service connection for a right knee disability. REPRESENTATION Moving party represented by: Terri Perciavalle, Agent ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The DD 214 of the moving party in this action reflects that he had active service from July 1977 to September 1977. This matter is before the Board of Veterans' Appeals (Board) as an original action on a motion received in January 2013, in which the moving party alleged CUE in a June 29, 2012 Board decision that denied entitlement to service connection for a right knee disability. No relevant evidence is contained in the moving party's virtual VA claims files that is not also contained in the paper claims file. FINDINGS OF FACT 1. In June 2012, the Board denied entitlement to service connection for a right knee disability. 2. There was a tenable basis for the Board's determination, and none of the errors alleged by the moving party would have manifestly changed the outcome of the appeal. CONCLUSION OF LAW The June 2012 Board decision that denied entitlement to service connection for a right knee disability did not contain CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under this statute may be filed at any time after the underlying decision is made. Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, 63 Fed. Reg. 31263 (1998), the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. The moving party's motion for review or revision was filed with the Board in January 2013. The statute and implementing regulations provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon request of the claimant. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party, if other than the veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. 38 C.F.R. § 20.1404(a). In this case, the moving party appears to have met the requirements of 38 C.F.R. § 20.1404(a). The January 2013 letter included his name, the date of the Board decision, the VA file number of the case decided by the Board, and referenced and indicated disagreement with the Board's June 2012 determination. Consequently, the Board finds that the moving party met the threshold pleading requirements of 38 C.F.R. § 20.1404(a). As shown in the discussion below, the Board also finds that the moving party set forth his allegations with sufficient specificity in his agent's January 2013 communication. The Board will therefore address the CUE motion on the merits. The provisions of 38 C.F.R. § 20.1403(a) define CUE as a very specific and rare 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, a finding of CUE requires either that the correct facts, as they were known at the time, were not before the Board, or that the statutory and regulatory provisions extant at the time were incorrectly applied. Id. The evidence to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. For a Board decision issued on or after July 21, 1992, the record to be reviewed includes relevant documents possessed by VA not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. 38 C.F.R. § 20.1403(b). 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). Examples of situations that are not CUE are: (1) changed diagnosis, i.e., a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) VA's failure to fulfill its duty to assist, and (3) 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 challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). In the January 2013 communication, the moving party's agent listed four contentions, and the Board will address them each in turn. In its June 2012 decision, the Board found that the moving party had a right knee disability that existed prior to service and was not aggravated by service, the details of which will be discussed below. In his first contention, the moving party's agent wrote that the Board provided inadequate reasons and bases because it did not address service connection for osteoarthritis of the right knee on a direct basis under 38 C.F.R. § 3.304. The agent contended that the moving party raised this issue during his September 2010 Board hearing. The agent further contends that there is a current diagnosis of arthritis of the right knee, credible evidence of an in-service injury, and a causal relationship supported by two medical statements of record. Initially, the Board notes that the Board did consider the provisions of 38 C.F.R. § 3.304. That regulation indicates that veterans are presumed sound when entering service, except as to defects, infirmities, or disorders noted at entrance. 38 C.F.R. § 3.304(b). The Board specifically considered the Veteran's condition at the time of entry and explained why the right knee X-ray at the time of entry showing right knee meniscectomy residuals with minimal narrowing of the medial cartilage space constituted notation of right knee disability at entry, thus preventing the presumption of soundness from attaching. In addition, the Board found that the contemporaneous evidence was more probative and credible than the moving party's lay statements with regard to the claimed in-service right knee injury. As such, even if the Board failed to discuss the theory of entitlement as to whether osteoarthritis first manifested in service or was due to an injury incurred in service, this error would not manifestly change the outcome of the appeal, because the Board explained its finding that the credible evidence of record supports a finding that a right knee injury did not occur during service. Thus, there is no CUE in the Board's alleged error in not addressing whether osteoarthritis was directly related to a right knee injury during service, because the Board found that there was no right knee injury during service. This allegation therefore cannot constitute CUE in the Board's June 2012 decision. The Board notes that, in subsequent allegations by the moving party's agent, he questions the Board's findings regarding the credibility of the moving party's lay statements. However, since the Board also finds no CUE in those contentions, as will be explained in more detail below, the moving party's lay statements regarding an in-service injury remain not credible. In his second contention, the moving party alleged that the Board fixated on the fact that the moving party alleged he was eligible to reenlist two years after separation when the service personnel records stated that the moving party was not eligible for reenlistment due to poor performance. The moving party asserts that the Board failed to properly review an Army document dated in August 18, 1977 to the moving party that informs him that he was not permitted to reenlist in the Armed Forces within two years of the date of his discharge. A review of the August 18, 1977 document specified by the moving party's communication reveals that the moving party signed a document containing general language, in which he acknowledged that he has been notified of his proposed honorable discharge and understood that he was not permitted to reenlist in the Armed Forces within two years of this discharge. As correctly reported in the Board's June 2012 decision, other documents in the moving party's personnel file show that he was not eligible for reenlistment. These documents were written specifically addressing the moving party and contained no indication that he may be able to reenlist after two years. Nevertheless, the moving party has not demonstrated how this error of fact, if it occurred, would have manifestly changed the outcome of this appeal. This apparent contradiction between the moving party's lay statements and the evidence contained in the personnel file was one of several inconsistencies noted by the Board in determining that the contemporaneous evidence was more credible than the moving party's lay statements regarding his alleged in-service injury. Thus, there are documents contained in the record showing both that the moving party was not eligible to enlist and that he was not eligible to enlist for two years would manifestly change the outcome of the Board's decision. Furthermore, the August 18, 1977 document does not say that the moving party would be eligible for reenlistment after two years. Instead, it says that he was not eligible for reenlistment for two years. The moving party states that the Board's conclusion that the moving party could not reenlist was erroneous and then states that the "evidence of record is actually consistent with all lay statements provided by the [moving party]." This conclusion is incorrect. Even if the Board incorrectly omitted evidence that may have suggested that the moving party was eligible to reenlist two years after separation, as noted above, there were several other inconsistencies contained in the record that show the moving party's lay statements to be not credible. As an example, the Board cited the moving party's assertion in service records upon separation that his medical condition had not changed since he was examined at entrance. This is in direct contradiction to his current statements that he incurred a right knee injury during service and was discharged for that reason. Furthermore, the agent asserts that the reasons given for the moving party's recommended discharge were poor physical condition, marginal performance, and disrespect for authority. While the agent asserts that the record does not contain a finding that the moving party's poor physical condition was anything other than his reported knee injury, the Board explained the various reasons why this is the case in the June 2012 Board decision. The Board's interpretation that "poor physical condition" listed as one reason for the moving party's early discharge did not support a finding of a right knee injury is not clear error, and the moving party's agent has not shown how it was. This interpretation is supported by the record and the other contemporaneous evidence. Reasonable minds could certainly differ as to what "poor physical condition" referenced in the moving party's personnel records. The Board's interpretation of these correct facts and weighing of the evidence to determine their meaning is specifically listed in the regulations as not constituting CUE. 38 C.F.R. § 20.1403(d). Third, the moving party alleged that the Board violated its statutory duty to provide a medical examination or opinion. However, as stated above, situations that are not CUE include VA's failure to fulfill its duty to assist. Therefore, this allegation, even if found to be true, does not constitute CUE in the Board's June 2012 decision. 38 C.F.R. § 20.1403(d). Finally, the moving party contends that the Board relied on its own unsubstantiated medical opinion in stating that, "[e]ven if a right knee injury during service did occur as alleged, the evidence of record indicates that any symptoms associated with such injury were merely a temporary intermittent flare-up of a preexisting right knee injury." The moving party alleged that the Board did not rely on any medical evidence in drawing this conclusion. However, the moving party does not explain how this error manifestly changed the outcome of the Board's decision. Specifically, at the time that the Board made this statement, it had already determined that the credible evidence of record showed that an in-service right knee injury did not occur. Therefore, this particular portion of the analysis is irrelevant to the outcome of the appeal. Neither the moving party nor his agent has suggested or pointed out how the outcome of the appeal would be different, since it had already been determined that the credible evidence of record showed that an in-service knee injury did not occur. As such, even assuming, without deciding, that the Board relied on its own unsubstantiated medical opinion in making this statement, it would not have manifestly changed the outcome of the moving party's appeal. 38 C.F.R. § 20.1403(c). For the foregoing reasons, none of the moving party's contentions establish that there was an outcome determinative error in the Board's June 2012 decision warranting a finding of CUE. The benefit of the doubt doctrine is inapplicable, and the moving party's CUE motion must therefore be denied. 38 C.F.R. § 20.1411(a). ORDER The motion alleging CUE in the Board's June 2012 decision denying entitlement to service connection for a right knee disability is denied. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs