Citation Nr: 1333335 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-45 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to January 20, 1994, for an award of service connection for coronary artery disease on the basis of clear and unmistakable error (CUE) with regard to a December 1968 rating decision. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for an effective date prior to January 20, 1994, for an award of service connection for coronary artery disease on the basis of CUE with regard to a December 1968 rating decision, which denied service connection for heart disease, claimed as cardiomegaly. In addition to coronary artery disease (rated 30 percent disabling), the Veteran is also service connected for lumbosacral spine degenerative joint disease (DJD) and degenerative disc disease with lumbosacral strain (currently rated 40 percent disabling), DJD of the right knee (currently rated 10 percent disabling), DJD of the left knee (currently rated 10 percent disabling), and tinea infection of the right foot (currently rated noncompensable). In February 2010, the Veteran appeared at an RO hearing before a Decision Review Officer (DRO), in which he raised his claim of CUE. At a November 2011 hearing, the Veteran and his attorney appeared at the RO to present oral testimony and evidence in support of his CUE claim before the undersigned traveling Veterans Law Judge. Transcripts of both hearings have been obtained and associated with the Veteran's claims folder for the Board's review and consideration. The case was previously before the Board in September 2012, when a decision was rendered denying the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2013, the Court vacated and remanded the case pursuant to a Joint Motion for Remand (Joint Motion) filed by the parties. The appeal is once again before the Board. As a procedural matter, the Board notes that the Veteran has submitted statements and an internet article since the case was re-certified for appeal. The Veteran has explicitly indicated he is waiving RO consideration of these documents. Accordingly, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 December 1968 rating decision, the Veteran was denied service connection for heart disease, claimed as cardiomegaly. The Veteran was notified of that decision and he did not perfect a timely appeal. 2. The December 1968 rating decision that denied service connection for heart disease, claimed as cardiomegaly, was adequately supported by the evidence of record and was not undebatably erroneous. The record does not demonstrate that the correct facts, as they were known in December 1968, were not before the RO at that time, or that incorrect laws or regulations were applied. To the extent that the correct laws or regulations may have been misapplied, it is not absolutely clear that a different result would have ensued with the correct application thereof. CONCLUSION OF LAW The December 1968 rating decision that denied service connection for heart disease, claimed as cardiomegaly, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the notice and duty to assist provisions of the law and regulations are not applicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). Therefore, discussion of the notice and duty to assist provisions in this case is not required. 38 U.S.C.A. §§ 5109A(a), 7111(a) (West 2002); 38 C.F.R. §§ 20.1400-20, 1411 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that when adjudicating CUE in a rating decision, each wholly distinct and different CUE theory underlying a request for revision is a separate matter. Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc). Thusly, when attacking a prior RO rating decision, each CUE theory must be presented to and adjudicated by the RO in the first instance. If not, the Board lacks jurisdiction over the merits of the matter. Id. In this regard, the Board notes that in addition to asserting that the December 1968 rating decision at issue is non-final because there is a pending appeal of the matter, the Veteran also presents basic assertions of CUE with respect to the December 1968 rating action that involve misinterpretation of the evidence and misapplication of the law regarding service connection on the basis of aggravation of a pre-existing condition. A reading of the text of the April 2010 rating decision on appeal, which denied the appellant's CUE claim, shows that the decision has broadly and essentially contemplated the aforementioned theories of CUE being raised by the claimant. The Board therefore finds that there is no prejudice to the Veteran in this regard and that the matter is now properly before the Board for appellate review and adjudication. The adjudicative history of the current claim is as follows: In a rating decision dated in December 1968, the RO denied service connection for heart disease, claimed as cardiomegaly. The rating decision noted that during a March 1966 induction examination, the Veteran reported that he had been previously rejected for military service on the basis of cardiomegaly. No actual clinical record demonstrating the presence of cardiomegaly at the time of this induction examination was indicated, and the examination report itself shows that the Veteran's heart was normal on chest X-rays obtained concurrent with this examination. The Veteran's blood pressure was normal at 118/80 and his heart and vascular system were normal on clinical assessment. The Veteran further denied having any abnormal blood pressure or chest pain on the medical history questionnaire that accompanied the March 1966 induction examination. Evidence that was present at the time of the December 1968 rating decision included the Veteran's service treatment records, which included a May 1966 dental examination note containing the remark 'heart trouble?' without any further clarification of the remark or indication of the context in which the remark was made. The evidence also included a June 1966 cardiac series that was conducted in response to complaints of weakness and dizziness, which revealed a systolic ejection-type heart murmur and no cardiomegaly and a clinical conclusion that the cardiac series represented normal findings. Also considered by the VA rating specialists at the time of the December 1968 rating decision was the report of an August 1967 tri-annual service treatment examination, which shows that the Veteran's heart was normal on chest X-ray, that his blood pressure was normal at 120/70, and that his heart and vascular system were normal on clinical assessment. An accompanying medical history questionnaire shows that the Veteran reported having chest pain but denied having heart palpitations or a pounding heart or abnormal blood pressure. He stated once again in his medical history that he had been previously rejected for active duty for having cardiomegaly. Clinical evidence that was considered by VA in its December 1968 rating decision also included the report of a January 1968 separation examination, which shows that the Veteran's heart was normal on chest X-ray and that his heart and vascular system were normal. An accompanying medical history questionnaire shows that the Veteran reported having chest pain but denied having heart palpitations or a pounding heart or abnormal blood pressure. He again reiterated that he had been previously rejected for active duty for having an 'oversized heart' (cardiomegaly). Post-service clinical evidence considered by VA in its December 1968 rating decision included the report of an August 1968 VA medical examination, which shows that the Veteran's blood pressure was normal at 138/60 with regular pulse. The examination referred to a chest X-ray study that revealed a normal heart. The August 1968 examination also noted the presence of a heart murmur that was suggestive of left ventricular hypertrophy. A subsequent VA examination conducted in November 1968 shows normal heart on chest X-ray, normal cardiac EKG study with regular rate and rhythm, and normal blood pressure of 100/80. The December 1968 VA rating decision determined that '[c]ardiomegaly, if present, preexisted service and aggravation is not demonstrated.' This rating decision was co-signed by a VA physician with an M.D. degree. A VA Form 20-822 (Control Document and Award Letter) dated in December 1968 reflects that a VA Form 21-6782 (Original Disability Compensation) was utilized to notify the Veteran of this decision and his appellate rights. No timely appeal of this determination was subsequently filed and the December 1968 rating decision became final under the law and regulations then in effect. 38 U.S.C. § 4005 (1964); 38 C.F.R. § 3.104 (1968). Almost 25 years later, on January 20, 1994, the Veteran submitted an application to reopen his claim for service connection for heart disease. Although his application was initially denied on the basis of no new and material evidence, a July 2002 Board decision ultimately determined that new and material evidence was, in fact, submitted and the claim was duly reopened for a de novo review on the merits. Clinical opinions were obtained during the course of evidentiary development that included a March 2002 opinion linking the Veteran's current coronary artery disease to the heart murmur noted in service in June 1966, and an August 2003 VA physician's opinion that it was as likely as not that the left ventricular hypertrophy noted in August 1968, within one year following his discharge from service in April 1968, was an early manifestation of the Veteran's current coronary artery disease. On this basis, a November 2003 rating decision granted service connection for coronary artery disease, effective January 20, 1994 (i.e., the date on which the Veteran filed his successful application to reopen his claim for VA compensation for heart disease). The Veteran immediately filed a timely appeal of the November 2003 rating decision, challenging the January 20, 1994 effective date assigned, but his appeal was ultimately denied by the Board in a December 2005 appellate decision. The Veteran did not thereafter timely appeal the December 2005 Board decision to the Court and thusly the January 20, 1994 effective date for the award of service connection for coronary artery disease became final. In October 2009, the Veteran submitted a freestanding claim for an earlier effective date prior to January 20, 1994, for an award of service connection for coronary artery disease. In this regard, the Court has held that there is no such thing as a freestanding earlier effective date claim for an award of service connection, and that the only way in the present case to overcome the finality of a prior decision assigning an effective date is by demonstrating clear and unmistakable error. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). The Court held in Rudd v. Nicholson, 20 Vet. App. 296 (2006), that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision. The Court reasoned that to allow such claims would vitiate the rule of finality. Id. at 300. Although there are exceptions to the rule of finality and application of res judicata within the VA adjudication system, such as revision of a final decision on the basis of clear and unmistakable error, a freestanding claim for an earlier effective date is not one of the recognized exceptions. See Id. at 299-300 (recognizing clear and unmistakable error as a way to overcome the finality of a decision in order to obtain an earlier effective date); DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary of VA). Thusly, at a DRO hearing conducted in February 2010, the Veteran submitted a claim of CUE with respect to the December 1968 rating decision denying service connection for heart disease. In his hearings before the DRO and the Board, and in various written statements submitted in support of his CUE claim, the Veteran contends that the December 1968 rating decision incorrectly applied the law with respect to the presumption of soundness regarding his alleged pre-existing cardiomegaly and service connection on the basis of aggravation, specifically asserting that as his March 1966 induction examination shows that he was fit for military duty, the presumption of soundness under 38 U.S.C. § 1111 (which was designated as 38 U.S.C. § 311 at the time of the December 1968 rating decision) placed the burden on VA to prove by clear and unmistakable evidence both (1) that the Veteran's cardiomegaly pre-existed service, and (2) that military service did not aggravate his cardiomegaly. The Veteran also presented assertions that he had, in fact, filed a timely appeal of the December 1968 rating decision and subsequently made several more attempts to file an appeal of this determination, but that his appeal was lost by VA through bureaucratic error and through no fault of his own and that any subsequent documentary proof of his timely filed appeal was likely destroyed in the terrorist bombing and destruction of the Alfred P. Murrah Federal Building in Oklahoma City in April 1995. He asserts that he should be afforded the benefit of the doubt, pursuant to 38 U.S.C.A. § 5107(b) (West 2002) and 38 C.F.R. § 3.102 (2012), and have VA recognize that an appeal of the December 1968 rating decision has been pending ever since for purposes of preserving the effective date of his original claim for VA compensation for heart disease under 38 C.F.R. § 3.400 (2012). In this regard, the Board notes that the benefit-of-the-doubt doctrine codified in 38 U.S.C.A. § 5107(b) is not applicable to CUE claims. The Board also notes that the Veteran has not submitted any documentation to substantiate this allegation, such as a dated copy of the filed appeal and the Board finds that his statements attesting that he has a pending appeal before the Board with respect to the December 1968 rating decision are simply not credible. Lastly, the Veteran also presented general assertions that the RO had incorrectly interpreted the evidence of record at the time of the December 1968 rating decision. As will be further discussed below, such assertions by themselves do not meet the standard for CUE. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2012). However, if the evidence establishes CUE, the prior decision will be reversed and amended. A determination that a prior determination involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996); Luallen v. Brown, 8 Vet. App. 92 (1995) (mere disagreement with how the RO evaluated the facts is inadequate to raise the claim of CUE). Moreover, a decision regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. Porter v. Brown, 5 Vet. App. 233 (1993). The law that was in effect at the time of the December 1968 rating decision stated that service connection would be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 310, 311, 331 (1964); 38 C.F.R. § 3.303 (1968). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1968). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1968). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1968). As previously discussed, the evidence before the RO at the time of the December 1968 adjudication included service treatment records, which noted that the Veteran had alleged a pre-existing cardiomegaly condition that he claimed was the basis for a prior disqualification from admission into active duty. The clinical evidence pertinent to his period of active duty shows no cardiomegaly on X-ray examinations conducted during service or after service and no medical diagnosis of cardiovascular disease during active duty or during the one-year presumptive period following his discharge from service in April 1968. A clinical notation that the Veteran's heart murmur was suggestive of left ventricular hypertrophy was presented on an August 1968 examination. Although over 30 years later, a medical statement dated in March 2002 and an August 2003 medical opinion ultimately demonstrated that this left ventricular hypertrophy represented coronary artery disease linked to service, there is no clinical evidence at the time of the December 1968 rating decision that undebatably demonstrated the actual existence of cardiomegaly or a diagnosis of cardiovascular disease, such that that aspect of the December 1968 rating decision that implicitly denied service connection for heart disease on a direct or presumptive basis was clearly and unmistakably erroneous. The Board has considered the Veteran's assertion that in its December 1968 rating decision, VA misapplied the law regarding service connection on the basis of aggravation of a pre-existing heart condition. There is some degree of validity to this argument: despite the Veteran having been found to have a normal heart on induction examination in March 1966 and being accepted as fit for active duty even though he reported a prior history of cardiomegaly, the December 1968 rating decision concluded that the Veteran's cardiomegaly, if present, pre-existed service without first specifically rebutting the presumption of the Veteran's soundness under 38 U.S.C. § 311 with clear and unmistakable evidence that (1) the Veteran's cardiomegaly had pre-existed service, and (2) military service did not aggravate his cardiomegaly. However, even where the premise of error is accepted, the Court in Fugo v. Brown, 6 Vet. App. 40 (1993), has stated that if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Significantly, it is, in fact, not absolutely clear that a different result would have ensued. The Board recognizes the evidence, as it existed at the time of the December 1968 rating decision, did not clearly and unmistakably demonstrate that there was cardiomegaly prior to service as the only evidence of such a condition is the Veteran's allegation to that effect. As the Veteran is not a trained medical professional, his statements regarding the existence of cardiomegaly are not entitled to be accorded the same probative weight as objective medical evidence. Cardiomegaly is a medical condition manifested by an enlarged heart that is not externally observable to a lay person and is ascertainable only through internal medical imaging (i.e., chest X-ray) or expert interpretation of clinical data such as those obtained from an EKG study. Therefore, the Veteran's unsubstantiated statements regarding a history of cardiomegaly would not constitute clear and unmistakable evidence of the actual existence of cardiomegaly as a clinical condition at the time of his entry into service. Nevertheless, the net result is that the Veteran would have still been denied service connection for heart disease (claimed as cardiomegaly) on a direct and presumptive basis, as the evidence of record at the time of the December 1968 rating decision did not objectively demonstrate the existence of cardiovascular disease either during active duty or within the one-year presumptive period following discharge from service in April 1968. As it is not absolutely clear that a different result would have ensued as a result of the asserted error, the error complained of cannot be clear and unmistakable. See Fugo, supra. Additionally, the Board considers it significant that, at the time of the December 1968 rating decision, the RO was not precluded from relying upon its own medical judgment to support its conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that VA adjudicators cannot substitute their own medical judgment for that of medical professionals). The December 1968 rating decision indicates that a VA physician participated in the decision and was a signatory to the determination. That physician's signature indicates his agreement with the finding that the Veteran's cardiomegaly, if present, pre-existed service and was not aggravated by service. Bowyer v. Brown, 7 Vet. App. 549 (1995) (the Board's position was substantially justified in a decision in relying on its own medical judgment, prior to the Court decision finding that a rating board or the Board could not rely on its own medical judgment). Thusly, it may be argued that the RO had, in fact, rebutted the presumption of the Veteran's soundness through clear and unmistakable evidence in the form of a co-signing VA physician's opinion that the Veteran's cardiomegaly, if present, had pre-existed service and that it was not aggravated (i.e., permanently worsened beyond its normal clinical progression) by service. The Board is mindful of the Veteran's general contentions that the evidence, at the time of the December 1968 rating decision, supported entitlement to service connection for heart disease. However, while the Veteran would now have the Board reconsider and re-weigh that evidence and arrive at a different conclusion than that which was reached by the December 1968 RO adjudicators, a CUE claim cannot succeed unless the error 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 (1993). The present case does not compel that conclusion. On the contrary, the contentions expressed by the Veteran involve no more than mere disagreement as to how the evidence was weighed and evaluated by the adjudicators who rendered the December 1968 rating decision, and, as such, do not support a finding that there was any error, much less CUE, in that decision. Eddy v. Brown, 9 Vet. App. 52 (1996); Luallen v. Brown, 8 Vet. App. 92 (1995). Finally, the Board notes that in the May 2013 Joint Motion for Remand the parties agreed that the September 2012 BVA decision contained an inadequate statement of reasons or bases for its decision denying the appellant's claim. The Joint Motion states that the Board determined the "evidence, as it existed at the time of the December 1968 rating decision, does not clearly and unmistakably demonstrate that there was cardiomegaly prior to service as the only evidence of such a condition is the Veteran's allegation to that effect." The Joint Motion then cites that this conclusion is inconsistent with the Board's statement that The December 1968 rating decision indicates that a VA physician participated in the decision and was a signatory to the determination. That physician's signature indicates his agreement with the finding that the Veteran's cardiomegaly, if present, pre-existed service and was not aggravated by service. Bowyer v. Brown, 7 Vet. App. 549 (1995) . . . Thusly, it may be argued that the RO had, in fact, rebutted the presumption of the Veteran's soundness through clear and unmistakable evidence in the form of a co-signing VA physician's opinion that the Veteran's cardiomegaly, if present, had preexisted service and that it was not aggravated . . . by service. The Board concedes that the two statements noted in the Joint Motion appear to contradict themselves. Nevertheless, the Board finds they were taken out of context from the Board's September 2012 decision. A review of the Board's September 2012 decision reflects the Board's explanation that even if there was error in failing to specifically rebut the presumption of soundness upon entry in service, the net result is that the Veteran would have still been denied service connection for heart disease on a direct and presumptive basis. Critically, the evidence of record at the time of the December 1968 rating decision did not objectively demonstrate the existence of cardiovascular disease either during active duty or within the one-year presumptive period following discharge from service in April 1968. Therefore, regardless of whether or not the Veteran was considered sound upon entry into service, it is not absolutely clear that a different result would have ensued. In sum, the Board finds that the Veteran has not identified any specific finding or conclusion in the December 1968 rating decision that was undebatably erroneous. The record does not reveal any kind of error of fact or law in the December 1968 rating decision 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. Thus, the criteria for a finding of CUE have not been met and the Veteran's claim to revise or reverse the December 1968 rating decision with respect to his heart disease claim must be denied. ORDER The December 1968 rating decision was not clearly and unmistakably erroneous in denying service connection for heart disease, claimed as cardiomegaly. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs