Citation Nr: 1333274 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 98-03 894 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a March 2012 Board decision that denied the Veteran's claim of CUE in a rating decision of February 1980 denying service connection for a right arm and wrist disorder. REPRESENTATION Moving party represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The moving party in this case, the Veteran, served on active duty from October 7, 1975 to February 6, 1976. In a March 2012 decision, the Board denied the Veteran's claim of CUE in a February 1980 rating decision that denied service connection for a right arm and wrist disorder. In April 2012, the moving party filed a motion with the Board to revise the March 2012 Board decision on the basis that the decision was clearly and unmistakably erroneous. This motion is before the undersigned Veterans Law Judge who has been designated to make the final disposition of this motion for VA. Notably, the Board in March 2012 also remanded to the RO for additional evidentiary and due process development the claims of service connection for a right arm and wrist disorder (claimed as ulnar nerve palsy, myositis, and carpal tunnel syndrome) and whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder. As such development has not yet been accomplished, these claims are not ripe for appellate consideration. FINDINGS OF FACT 1. In a decision dated in March 2012, the Board denied the Veteran's claim of CUE in a February 1980 rating decision denying service connection for a right arm and wrist disorder. 2. The record does not establish that any of the correct facts as they were known at the time were not before the Board in March 2012, or that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The March 2012 Board decision, denying CUE in a February 1980 rating decision that denied service connection for a right arm and wrist disorder, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1403 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the Veteran's motion, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations as provided in the VCAA have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, in a claim of CUE, the duties to notify and assist are not applicable. Specifically, determinations as to the existence of CUE are based on the facts of record at the time of the decision challenged, such that no further factual development would be appropriate. 38 C.F.R. § 20.1411(c), (d); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). Principles of CUE Effective November 21, 1997, the provisions of Pub. L. No. 105-111, 111 Stat. 2271 (codified at 38 U.S.C.A. § 7111) permit challenges to decisions of the Board on the grounds of CUE. The final regulations amending the Rules of Practice before the Board were promulgated and became effective on February 12, 1999, providing for procedures to challenge prior Board decisions on the basis of CUE. 64 Fed. Reg. 2134 -2141 (1999) (codified at 38 C.F.R. § 20.1400 et. seq. (2009)). A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C.A. §§ 5109A(a), 7111(a) and (c). It is apparent that Congress, in creating § 7111, intended VA to follow the established case law defining a viable claim of CUE. 64 Fed. Reg. 2134, 2137 (1999); Donovan v. West, 158 F.3d 1377, 1382-83 (Fed. Cir 1998). This case law is found primarily in the following precedent opinions of the United States Court of Appeals for Veterans Claims (Court): Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Crippen v. Brown, 9 Vet. App. 412 (1996); Berger v. Brown, 10 Vet. App. 166 (1997); and Stallworth v. Nicholson, 20 Vet. App. 482 (2006). CUE is defined as 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). A review for CUE in a prior Board decision must be based on the record and the law as it existed when that decision was made. 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. 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). CUE does not include a change in medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a 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). Further, the doctrine of the favorable resolution of reasonable doubt is not applicable in determinations of whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a). As a threshold matter, a claimant must plead CUE with particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). Factual Background The Veteran served on active duty from October 7, 1975 to February 6, 1976. In a February 1980 rating decision, the Winston-Salem, North Carolina Regional Office (RO) denied service connection for a right arm and wrist disorder. The Veteran was notified of that decision and his appellate rights by letter in March 1980, and he did not appeal the decision to the Board. Later, the Veteran filed an application to reopen his claim of service connection for a right arm and wrist disorder (claimed as ulnar nerve palsy, myositis, and carpal tunnel syndrome), which the RO in a September 1997 rating decision denied on the basis that new and material evidence had not been received to reopen the claim. However, in a September 2000 decision, the Board reopened the claim and remanded the case to the RO for additional development. That claim is still pending and is currently remanded to the RO for further development. Meanwhile, the Veteran filed an additional claim, alleging CUE in the February 1980 rating decision, which had initially denied service connection for a right arm and wrist disorder. In a December 2002 rating decision, the Atlanta, Georgia RO denied his CUE claim, which the Veteran then appealed to the Board. In a March 2012 decision, the Board denied the Veteran's claim of CUE in a February 1980 rating decision, which denied service connection for a right arm and wrist disorder on the basis that the right arm and wrist condition pre-existed service and was not aggravated in service. The Board found that the February 1980 rating decision was final as it had not been appealed (a fact that is not contested by the Veteran), and that the February 1980 rating decision was not clearly and unmistakably erroneous because the outcome would not have been manifestly different had all the statutory or regulatory provisions extant at the time of the February 1980 rating decision been correctly applied. In its decision, the Board specifically cited to the Veteran's contentions that his right arm and wrist disability had onset in service, did not pre-exist service, and became progressively worse since that time. The Board also cited to the service treatment records that showed no noted defects regarding the right arm and wrist on the entrance examination; complaints relative to the right arm and wrist on several occasions from November 1975 to January 1976, during which the Veteran also reported the onset of pain one year earlier for which he had sought medical treatment from a physician; diagnoses of myositis - tendonitis and carpal tunnel syndrome, after which an EMG study of the right arm and hand was normal; and no chronic disability shown at the time of discharge in February 1976, although there was a noted history of swollen/painful joint complaints for about 1 1/2 years. Additionally, the Board cited to a post-service private record indicating a work-related accident in November 1977 in which the Veteran sustained injury to his right arm and elbow, for which he was paid worker's compensation. In its rationale, the Board acknowledged that the Veteran's allegations involving an error of fact (i.e., that the RO had incorrectly found he had a pre-existing right arm and wrist disability), but stated that the issue of a pre-existing right arm/wrist disability was not "undebatable" in the face of several in-service reports of right arm/wrist pain prior to enlistment, even though the entrance examination reflected no reports or clinical findings of a disability. The Board further explained that any failure on the RO's part to apply the presumption of soundness at the time of enlistment based on no noted right arm/wrist defects was not CUE, as the RO implicitly determined that the presumption of soundness had been rebutted by clear and unmistakable evidence of service treatment records showing a problem beginning before service, and that the condition was also not aggravated by service as EMG testing was normal in service. The Board deemed the Veteran's disagreement with the RO's rating decision was one concerning how the facts were weighed, which cannot constitute CUE. Finally, the Board determined that even if it was accepted that the Veteran's in-service right arm and wrist disability "undebatably" did not pre-exist service, a finding that the incorrect law was applied (i.e., the law governing the presumption of soundness and the aggravation of a pre-existing condition) did not equate to CUE because the outcome would not necessarily have been different. In that regard, the Board noted that at the time of the February 1980 rating decision, there was no evidence of the required nexus between any current right arm/wrist disability and the documented complaints of pain and numbness in service, especially when there was a negative EMG study and evidence of an intervening work-related right arm/elbow injury in November 1977. In April 2012, the Board received the Veteran's motion for revision or reversal of the March 2012 Board decision. He argued that his rights to due process were violated as there were clear errors of fact made by the Board, which prevented an award of service connection for his right arm and wrist disability. He emphatically denied that there was evidence to support the existence of a right arm and wrist disorder prior to service. He stated that it was a "gross error of fact" to claim he had a pre-existing medical problem without producing documentation and by ignoring medical examinations (he pointed to the entrance examination whereupon he had no noted defects). He argued that due process was circumvented by ignoring the facts of the in-service records showing a diagnosis of carpal tunnel syndrome and the documentation of a direct nexus between in-service treatment/diagnosis of a right arm/wrist problem and post-service treatment/diagnosis a year later showing the same right arm/wrist problem. In short, the Veteran contended that the Board ignored all of the pertinent facts and instead relied on "non factual no evidence assumptions" to arrive at its "unfair" decision. Analysis The question before the Board is whether the March 2012 decision of the Board contained CUE in denying the Veteran's claim of CUE in a February 1980 rating decision that denied service connection for a right arm and wrist disorder. After a careful review of the record, the Board finds that its March 2012 decision that denied the claim of CUE in the February 1980 rating decision was not clearly and unmistakably erroneous, as claimed by the Veteran, for the reasons that follow. The documents considered in the March 2012 Board decision consisted of the February 1980 rating decision and its March 1980 notification to the Veteran, as well as the evidence considered by the RO in that rating decision. Such evidence consisted of the Veteran's claim (that his right arm and wrist disorder had onset in service and was related to his current right arm and wrist disorder), his service treatment records, and a post-service private record (indicating the Veteran sustained injury to his right arm and elbow in an industrial accident in November 1977). The Board considered whether the RO in February 1980 committed CUE in its determination to deny the Veteran's claim of service connection for a right arm and wrist disorder. That is, the Board reviewed whether the RO committed any error of fact or error of law that, without any doubt, would have resulted in a manifestly different decision. The Board concluded that the outcome of the February 1980 rating decision would not have been manifestly different had all statutory or regulatory provisions been applied correctly. Further, the Board rebutted the Veteran's claims of an error of fact and of law with regard to the issue of pre-existence of a right arm/wrist disorder and with regard to a nexus between in-service documentation of a disability and a current disability. The Board did so by identifying the service treatment evidence that suggested there was a pre-existing disorder and by explaining how it was not absolutely clear that service connection would have been warranted in February 1980, even if the Veteran was presumed sound at enlistment, given the negative diagnostic testing in service and an intercurrent injury more than a year after service. The Board's decision included a definition of CUE and described what it was and, in regard to the February 1980 rating decision, what it was not. Additionally, the Board's March 2012 decision listed the three criteria that must all be satisfied in order to establish CUE in a prior, final decision and made a finding of fact that was supported by rationale explaining how a criterion was not met (i.e., the error of fact or law that was the sort, had it not been made, would have manifestly changed the outcome at the time it was made). The Veteran contended that the Board's March 2012 decision should be revised to grant his right arm and wrist disorder claim because it made clear errors of fact, but in considering whether the RO's February 1980 decision contained CUE, the Board addressed all pertinent facts as they were known at the time of the 1980 decision. That is, the correct facts as they were known at the time of the February 1980 rating decision were before the Board in March 2012 for its CUE consideration. Moreover, the Board considered the propriety of the statutory or regulatory provisions that were applied by the RO in February 1980, and explained how any error, especially regarding the pre-existing disability issue, would not have resulted in a different outcome. In short, the Veteran's allegations of CUE in the March 2012 Board decision that found no CUE in a February 1980 rating decision have no merit. He has not shown how the Board's March 2012 conclusion of no CUE is itself CUE. The Board in March 2012 addressed the Veteran's claim of CUE on the merits, as previously described, but his current pleading of CUE appears largely rooted in a broad allegation of a due process violation on the basis of ignoring pertinent facts in the record, which as noted previously is patently incorrect. The Veteran argues that had the Board properly considered the facts before it, then the result would have been manifestly different. This assumption, too, is incorrect, as the Board cited to and expressly considered the pertinent records, in determining whether the RO's February 1980 rating decision contained CUE. There is nothing in the March 2012 Board decision that would compel a conclusion, to which reasonable minds could not differ, that the Board committed CUE in upholding the RO's February 1980 rating decision as being free of CUE. Stated another way, in considering the criteria for establishing CUE and in determining that the RO in the February 1980 rating decision did not meet all the criteria, as would be required in order to grant the Veteran's CUE claim, it has not been shown to an undebatable degree that the Board committed CUE in March 2012. It is noted that any disagreement with how the Board weighed and evaluated the facts on record in this regard does not constitute CUE. Further, there is no allegation or showing that the Board's decision in March 2012 was not in accordance with established case law and the applicable criteria of 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1403. The Board reiterates that the standard for CUE requires that any such error compel the conclusion that reasonable minds could not differ, and that the result would have been manifestly different but for the error. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Here, the Veteran has not shown an undebatable error in the March 2012 Board decision, adjudicating the issue of CUE in a February 1980 rating decision, which would manifestly change the outcome of the decision. The March 2012 Board decision was reasonably supported by the evidence of record for consideration, namely, the February 1980 rating decision and the evidence on file at that time, and was consistent with the laws and regulations in effect at the time of the February 1980 rating decision in addition to the case law and the statutory and regulatory provisions pertaining to CUE. Consequently, the appeal must be denied. ORDER As the Board's March 2012 decision, which denied the Veteran's claim of CUE in a February 1980 rating decision denying service connection for a right arm and wrist disorder, was not clearly and unmistakably erroneous, the motion for revision or reversal of that decision is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs