Citation Nr: 1334737 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-45 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a May 1971 rating decision in which the RO denied entitlement to service connection for deformity of L3 (claimed as back condition). 2. Entitlement to an effective date earlier than June 23, 2006, for the grant of service connection for degenerative spurring of the lumbar spine, deformity of L3 (claimed as back condition). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Hager, Counsel ORDER TO VACATE The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). In an April 1, 2013 decision, the Board granted entitlement to an effective date of May 13, 1971 for the award of service connection for degenerative spurring of the lumbar spine, deformity of L3. This decision was based on the Board's conclusion that new and material evidence, specifically the Veteran's DD Form 214, had been submitted within a year of a May 27, 1971 rating decision, resulting in the original compensation claim remaining pending. The Board also dismissed a motion alleging CUE in the May 27, 1971 rating decision in which the RO denied entitlement to service connection for deformity of L3, because the granting of the motion could not result in any additional benefit to the Veteran, given that the effective date granted was the day after separation from service and therefore the earliest possible effective date. As the Board has been informed that the DD Form 214 was already of record at the time of the May 1971 rating decision, and was therefore duplicative of evidence already in the claims file, the Board finds that the evidence was not new and material and its conclusion to the contrary was in error. Accordingly, the April 1, 2013 Board decision Board granting an effective date of May 13, 1971 for the award of service connection for degenerative spurring of the lumbar spine, deformity of L3, and the dismissing as moot the motion alleging CUE in the May 27, 1971 rating decision denying entitlement to service connection for deformity of L3, is VACATED. INTRODUCTION The Veteran served on active duty from April 1969 to March 1971. He was awarded a Combat Infantryman Badge (CIB) and a Purple Heart Medal. He was in Vietnam from September 1969 to September 1970. These matters come before the Board from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In implementing a January 2010 Board decision granting entitlement to service connection for degenerative spurring of the lumbar spine, deformity of L3, the RO assigned a noncompensable rating effective May 15, 2006 and a 10 percent rating effective January 7, 2008. The Veteran timely appealed the effective date of the grant of service connection as well as the effective date of the 10 percent rating. At the same time, the Veteran filed a motion claiming CUE in the RO's May 1971 decision that denied entitlement to service connection for back trouble. In a series of subsequent decisions, the RO granted the effective date claims to the extent of granting a 10 percent rating effective the May 15, 2006 date of the grant of service connection for back disability. There has been no disagreement with the effective date of the 10 percent rating and that issue is therefore not before the Board. FINDINGS OF FACT 1. In a May 27, 1971 decision, the RO denied entitlement to service connection for back trouble based on the lack of evidence of back trauma in service and the fact that the diagnosed L3 deformity was considered to be of post-service origin. Exam right after service found evidence of back deformity that "could be the result of old trauma," with an in-service history of falling from a vehicle. Residuals of trauma to L-3 was the pertinent diagnosis. 2. The evidence before the RO at the time of the May 27, 1971 decision included the Veteran's DD Form 214, which indicated that he had received the combat infantry badge (CIB), his statement that he had back trouble in January 1970, a January 1970 service treatment record indicating he fell off of a truck, and a May 1971 X-ray report indicating that he had an L3 deformity that could be the result of old trauma. 3. Application of the law in effect at the time of the May 27, 1971 decision to the facts before the RO at that time undebatably shows that entitlement to service connection for the Veteran's claimed back disability was warranted. 4. The finding of CUE has the result of removing any case or controversy concerning the earlier effective date claim. CONCLUSIONS OF LAW 1. The May 27, 1971 RO decision denying entitlement to service connection for deformity of L3 was clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012). 2. The claim for an effective date for the award of the grant of service connection for a low back disorder is moot. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION Previous determinations which are final and binding, including decisions of service connection, are to be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision is to be reversed or amended. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). In a May 1971 decision, the RO denied entitlement to service connection for L3 deformity. The Veteran was notified of the RO's decision in a June 1971 letter but did not file an appeal within a year of being notified of the denial of his claim or submit new and material evidence within the one year appeal period. The May 1971 denial thus became final. 38 U.S.C.A. § 4005(c) (West 1970); 38 C.F.R. §§ 3.104(a), 3.156(a) (1971). The Veteran claims that the May 1971 decision denying him entitlement to service connection for back disability contained CUE and should thus be reversed. The Board agrees. In determining whether a prior RO decision contains CUE, the Court has established a 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 simple disagreement on how the facts were weighed or evaluated), or the statutory-regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error. Even when 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 ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). Within a month of his March 1971 separation from service, the Veteran filed a claim for entitlement to service connection for back trouble and right arm wounds, both of which he indicated occurred in January 1970. The service treatment records (STRs) document only an injury to the right arm and forearm in January 1970. Specifically, a January 1970 STR indicated that the Veteran was seen after falling off of a truck and sustaining an abrasion to the right arm and forearm. X-rays were negative and an abrasion was cleaned. On the March 1971 separation examination, the spine was reported as normal. On the March 1971 report of medical examination, the Veteran denied having had swollen or painful joints, a history of broken bones, arthritis or rheumatism, bone, joint, or other deformity, painful or "trick" shoulder or elbow or back trouble of any kind. The Veteran was afforded a May 1971 VA examination. The medical history section indicated a fall from a tracked vehicle. A report of an X-ray taken in connection with the examination indicated that there was minimal deformity at the anterior superior margin of L3 that "could be the result of old trauma," and was otherwise negative. Examination of the back was normal, other than minimal discomfort with deep pressure over the right sacroiliac joint and lumbosacral joint. The diagnoses included "residuals of trauma to L3." In its May 27, 1971 rating decision, the RO noted the X-ray report showing minimal deformity of the anterior-superior margin of L3 that could be the result of old trauma and the essentially normal examination, and found that, because the STRs were negative as to trauma to the back in service, the minimal deformity of the third lumbar vertebra was considered to be of post-service origin. The RO therefore denied the claim. The evidence before the RO at the time of the May 1971 denial included the Veteran's DD Form 214, which indicated that he had received the CIB. The law and regulations at that time indicated that, in the case of any veteran who engaged in combat with the enemy, VA would accept as sufficient proof of service connection of any injury alleged to have been incurred in such service satisfactory lay or other evidence of service incurrence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and in the absence of clear and convincing evidence to the contrary. 38 U.S.C.A. § 354(b) (West 1970); 38 C.F.R. § 3.304(d) (1971). The CIB is, and has been, a decoration indicative of combat with the enemy. See VA Adjudication Manual Rewrite Manual, M21-1MR, Part IV, Subpart ii, 1.D.13.d (June 6, 2011) (listing CIB as decoration warranting presumption of combat absent clear and convincing evidence to the contrary). At that time, entitlement to service connection for disability resulting from personal injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war. 38 U.S.C.A. § 301 (West 1970); 38 C.F.R. § 3.303(a) (1971). In his April 1971 original compensation claim, the Veteran indicated that he experienced back trouble in January 1970 and also that he experienced right arm wounds on January 28, 1970. As noted, the RO denied the claim because of the lack of evidence of back trauma in the STRs and its conclusion that the Veteran's back disability was therefore of post-service origin. The RO did not, however, consider the Veteran's contention that he experienced back trouble in January 1970 to include that he sustained a back injury and incurred a back disability in the January 1970 fall from the truck. The Board finds that the RO should have construed the contention in this manner, given that January 1970 would encompass the January 28, 1970 fall and the January 29, 1970 treatment note corroborating the fall. Moreover, given that the Veteran engaged in combat with the enemy, he can use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b), the successor statute to 38 U.S.C.A. § 354(b)). In addition, the fact that the claimed cause of the Veteran's back trouble, i.e., the fall from the truck, is therefore established by his testimony and supported by the January 29, 1970 treatment note, does not prevent him from also invoking the combat presumption in order to show that he incurred the back disability itself while in service. Reeves, 682 F.3d at 999. This showing of in-service incurrence of back disability is also supported by the May 1970 X-ray indicating that the L3 deformity "could be the result of old trauma," with a recorded diagnosis of the low back. Given the satisfactory lay evidence of the in-service back injury from the fall from the truck and consequent incurrence of back disability, and the medical opinion indicating that the post-service back disability of L3 deformity could be the result of prior trauma, the RO's finding that the deformity "is considered to be of post-service origin" is clearly and unmistakably erroneous based on the law and facts before it at that time. As the evidence thus undebatably reflects incurrence of the Veteran's back disability in service, entitlement to service connection for the diagnosed disorder of L3 deformity should have been granted and the May 27, 1971 denial of this claim therefore contains CUE. Accordingly, reversal of that decision and an award of service connection for L3 deformity is warranted. With regard to the earlier effective date claim, the Board notes that the Veteran filed a claim for service connection for back trouble in April 1971, within a year of his March 12, 1971 discharge from service. As the Board has reversed the RO's denial of that claim, and granted the claim for compensation that was filed within a year of discharge from service, the appropriate effective date for the grant of service connection is the day following discharge from service, March 13, 1971. 38 U.S.C.A. § 5110(b)(1). As this is the earliest possible effective date that the Veteran could receive, the separate claim for an effective date earlier than June 23, 2006, for the grant of service connection for degenerative spurring of the lumbar spine, deformity of L3, must be dismissed as moot. ORDER The motion alleging CUE in the RO's May 27, 1971 rating decision denying entitlement to service connection for deformity of L3 is granted, the decision is reversed to reflect that entitlement to service connection for deformity of L3 (claimed as back condition) was granted. The claim for an effective date earlier than June 23, 2006, for the grant of service connection for degenerative spurring of the lumbar spine, deformity of L3 is dismissed as moot. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs