Citation Nr: 1333455 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-21 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a November 1982 rating decision that denied service connection for headaches of undetermined origin. 2. Whether there was CUE in June 2005 and June 2006 rating decisions that denied service connection for a left hip condition. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1970. He is the recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims does not reveal any pertinent information not physically of record. The matter of whether there was CUE in June 2005 and June 2006 rating decisions that denied service connection for a left hip condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a final decision issued in November 1982, the RO denied service connection for headaches of undetermined origin. 2. The November 1982 rating decision did not properly apply governing law in effect at such time and failed to consider the correct facts as they were known at the time, and such errors, had they not been made, would have manifestly changed the outcome. 3. The presumption of soundness has not been rebutted and headaches had their onset during the Veteran's military service. CONCLUSIONS OF LAW 1. The November 1982 rating decision that denied service connection for headaches of undetermined origin is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1982) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013)]. 2. The November 1982 rating decision that denied the Veteran's claim for service connection for headaches of undetermined origin contained CUE and requires revision; service connection for headaches is warranted. 38 U.S.C.A. §§ 5109A, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.105 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, the notice and assistance requirements of the VCAA are not applicable to CUE issues such as the one on appeal. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). II. Analysis An unappealed rating decision is final, and may not be revised based on the evidence of record at the time of the decision unless it is shown that the decision involved CUE. 38 U.S.C.A. § 7105. Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purpose of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior 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 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. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993). The laws in effect at the time of the 1982 rating decision reflect that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated in service. 38 U.S.C. 310 (currently 38 U.S.C.A. § 1110). A Veteran is 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 of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such. 38 U.S.C. 311 (currently 38 U.S.C.A. § 1111). The Federal Circuit clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any pre-existing conditions were not aggravated by service. The Board notes that Wagner was essentially a statement of what the statute creating the presumption of soundness has meant since its enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (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"). In addition, the Federal Circuit has recently held that its interpretation of section 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains "what the statute has meant since the date of enactment." Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). Thus, the Federal Circuit found that a 1986 Board decision which failed to apply the clear-and-unmistakable-evidence standard to the issue of aggravation was not in accordance with the law. See id. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. 353 (currently 38 U.S.C.A. 1153). Summarizing the pertinent facts and procedural history with the above criteria in mind, the service treatment reports (STRs) include reports from the December 1966 service entrance examination and medical history collected at that time that does not reflect any evidence of headaches or other disability related to the head. In fact, the Veteran denied frequent or severe headaches. As such, and notwithstanding an April 1968 statement from the Veteran's parents indicating that the Veteran had "trouble with his head all of his life" and a June 1968 STR showing the Veteran reporting having headaches "all his life," the Veteran is presumed to have been sound upon entrance to service with respect to a disability manifested by headaches. After reviewing the STRs, the Board has determined that there was an increase in the underlying disability of the headaches that existed prior to service. Prior to April 1967, there were no complaints of headaches. However, April 1967 STRs reflect treatment for a head injury after the Veteran fell six feet from a roof. An x-ray conducted at that revealed no fracture but "very prominent" vascular marking of indeterminate clinical significance. In May 1967, the Veteran was treated for fainting, with the Veteran said to have similar problems in the past. An electroencephalogram was negative with the exception of drowsiness, and the impression, following an indeterminate neurologic work up, was post traumatic headaches and lightheadedness with one episode of simple syncope. Thereafter, the STRs reflect consistent and continuing complaints about headaches, with, among other STRs, September 1967 and January 1969 STRs indicating that the headaches were constant. A provisional diagnosis of temporal arteritis was rendered in June 1968, and while the examiner did not feel that the Veteran's condition represented temporal arteritis following an examination at that time, this diagnosis was reported on STRs thereafter, to include one dated in December 1968. One STR dated in January 1969 described the headaches as "severe." Additionally, in March 1969, it was noted that the Veteran complained of temporal headaches, which he reported that he had all of his life and were getting worse. It was noted that a diagnosis of temporal arteritis had been entertained, but was unlikely. In March 1969 and April 1969, he was diagnosed with a migraine tension headache. Further supporting a determination of in-service aggravation is a September 1968 statement included with the STRs from the Executive Officer assigned to the infantry unit the Veteran served with in Vietnam indicating that he had observed the Veteran suffering from "extremely painful" headaches for which he had seen many doctors and been prescribed different medications, none of which had reduced his pain. He reported that during the time the Veteran had worked for him, he always performed his work in an outstanding manner but was unable to sleep at night when he finished work. This individual felt that the Veteran should be recommended for a medical discharge. Finally, a December 1968 statement included with the STRs from a medical professional, after making reference to the suggestion that the Veteran be referred for a medical discharge when he was returned to the continental United States from Vietnam, noted personal observation of the Veteran's attacks of cephalgia that were said to have at times "completely incapacitated" the Veteran. Ultimately, the Veteran did not receive a medial discharge, although the medical history collected in conjunction with the November 1969 separation examination showed the Veteran answering in the affirmative as to whether he had "frequent or severe headache." The separation examination conducted at that time was negative with respect to headaches or any disability involving the head. Following service, the Veteran filed a claim in August 1982 for service connection for "head problems" that he said were incurred during service in 1967. An October 1982 letter indicated that the Veteran was being scheduled for a VA examination in connection with this claim, but documentation completed by the RO in that month indicated that the Veteran wanted a delay in this examination. Nonetheless, the examination was not rescheduled. Based on the aforementioned evidence of record, the RO in a November 1982 rating decision denied the Veteran's claim for service connection for the claimed head problems, as well as a sinus infection. This decision summarized the pertinent in-service history, to include the reference in service from the Veteran in June 1968 to having suffered from headaches all of his life and the April 1968 letter from the Veteran's parents referring to his suffering from pre-service problems involving his head. However, in reporting this history, the RO incorrectly stated that there were no medical complaints from the Veteran noted at separation when, in fact, and as noted above, the Veteran specifically reported suffering from headaches on the history collected at separation. Following the summary of the evidence, the rating decision determination reads: Preponderance of [the] evidence indicates the [V]eteran had headaches all his life, and had been treated for [a] sinus condition prior to service. It is true that the [V]eteran was treated in service and medical authorities tried to find the origin or cause of the headaches, but there is no indication that the [V]eteran's condition was aggravated by service or that the condition progressed more than a normal amount during service, and therefore [there is] no basis to service connect the [V]eteran's headaches or sinusitis. In November 1982, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for headaches was received within one year. In fact, the Veteran did not submit any communication to the RO until April 2005 when he filed an unrelated claim. Therefore, the November 1982 rating decision is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1982) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for headaches was received prior to the expiration of the appeal period stemming from the November 1982 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Accordingly, the decision may now be collaterally attacked and ultimately revised only on the basis of CUE. 38 U.S.C.A. § 7105. In this regard, the Board finds that the November 1982 rating decision did not properly apply governing law in effect at such time and failed to consider the correct facts as they were known at the time, and such errors, had they not been made, would have manifestly changed the outcome. Therefore, such rating decision requires revision based on CUE and service connection for headaches is warranted. In this regard, the Board finds that the November 1982 rating decision did not properly apply the laws governing the presumptions of soundness and aggravation that were in effect at the time of such decision. As noted previously, as the Veteran's December 1966 entrance examination is negative for any findings referable to headaches, he is presumed to have been sound upon entrance to service with respect to a disability manifested by headaches. As such, the presumption of soundness may be rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any pre-existing conditions were not aggravated by service. In the instant case, the RO appears to make a finding that there was evidence that the Veteran's headaches pre-existed service and were not aggravated by service. However, such misapplies the presumption of aggravation. In this regard, while there is arguably clear and unmistakable evidence that the Veteran's headaches pre-existed his entry to active service based, as noted by the RO in the November 1982 rating decision, on his statements in June 1968 to having suffered from headaches all of his life and the April 1968 letter from the Veteran's parents referring to his suffering from pre-service problems involving his head, the RO's finding that there is no indication that the Veteran's condition was aggravated by service or that the condition progressed more than a normal amount during service failed to consider the correct facts as they were known at the time and, as such, improperly applied the presumption of aggravation. In this regard, the Veteran's service treatment records clearly show an increase in complaints of his headaches and such are described as "constant" and "severe." Moreover, he reported at the time of his November 1969 separation examination that he had frequent or severe headaches, a fact which the RO clearly misrepresented in the November 1982 rating decision as it specifically noted that there were no medical complaints shown on the Veteran's November 1969 report of medical history. Therefore, it cannot be said that there is clear and unmistakable evidence that the Veteran's headaches were not aggravated by service. In short, with correct application of the legal standards (which was not accomplished in the rating decision in question), the Board find that given its determination that there was a worsening in the underlying level of disability associated with headaches documented in the STRs as set forth above, it is axiomatic that such evidence does not arise to the level of clear and unmistakable evidence of non-aggravation. Given this evidence of an increase in underlying disability associated with the Veteran's headaches during service by the STRs, there was simply no way that a reasonable person could have found clear and unmistakable evidence that there was no aggravation during service. Based on the foregoing, the Board concludes that the November 1982 rating decision which denied the Veteran service connection for headaches of undetermined origin did not properly apply the proper standard of proof required to rebut the statutory presumption that the Veteran's pre-existing disability was aggravated by service, and is clearly and unmistakably erroneous. Accordingly, revision of that decision based upon CUE is necessary. In this regard, the Board finds that, based on the foregoing evidence, the presumption of soundness has not been rebutted and headaches had their onset during the Veteran's military service. Therefore, service connection for headaches is warranted. ORDER The appeal to establish CUE in the November 1982 rating decision that service connection for headaches of undetermined origin is granted. Service connection for headaches is granted. REMAND The Board notes that a January 2013 rating decision found that there was no CUE in June 2005 and June 2006 rating decisions that denied service connection for a left hip condition. Thereafter, in the Veteran's representative's September 2013 Informal Hearing Presentation, which was received at the Board, he submitted a notice of disagreement as to such denial. While the September 2013 document was filed at the Board, such will, along with the Veteran's claims file, be returned to the RO upon the issuance of this decision. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is needed. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with statement of the case on the issue of whether there is CUE in June 2005 and June 2006 rating decisions that denied service connection for a left hip condition. Please advise them of the time period in which to perfect the appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs