Citation Nr: 1337795 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-22 509 ) DATE ) ) THE ISSUES 1. Whether there is clear and unmistakable error in an April 14, 2011, Board decision which determined that there was no clear and unmistakable error in an August 6, 1982, Board decision which denied service connection for ankylosing spondylitis of the hips. 2. Whether there is clear and unmistakable error in an April 14, 2011, Board decision which determined that there was no clear and unmistakable error in a March 28, 1983, Board decision which restored a 10 percent rating for chronic lumbosacral strain with traumatic arthritis of the low spine, but which denied more than a 10 percent evaluation for that disorder. REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The moving party (the Veteran) served on active duty from December 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 motion by the Veteran requesting revision of a Board decision dated April 14, 2011, which determined that clear and unmistakable error (CUE) did not exist in August 6, 1982 and March 28, 1983 Board decisions which respectively denied service connection for ankylosing spondylitis of the hips, and denied a rating in excess of 10 percent for chronic lumbosacral strain with traumatic arthritis of the low spine. All final Board decisions are subject to revision under 38 C.F.R. §§ 20.1400, et seq., except for decisions on issues which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have subsequently been decided by a court of competent jurisdiction. See 38 C.F.R. § 20.1400(b) (2013). Here, the Veteran submitted his motion to revise the April 14, 2011, Board decision shortly after the decision was issued. There is no indication that, in the more than 2 years since the decision, he appealed the same Board decision to the United States Court of Appeals for Veterans Claims (Court). Thus, the April 14, 2011, Board decision is a final decision to which the provisions pertaining to motions to revise on the basis of CUE are applicable. The record reflects that in August 2011, the Board advised the Veteran and his representative that the motion had been docketed, advised them of the relevant citations to the law and regulations pertaining to his motion, and afforded them at least 30 days in which to submit any evidence or argument. FINDINGS OF FACT 1. In an April 14, 2011 decision, the Board determined that an August 6, 1982 Board decision which denied service connection for ankylosing spondylitis of the hips did not contain clear and unmistakable error. 2. There was no outcome determinative error of fact or law in the Board's April 2011 decision finding that the August 1982 Board decision did not contain CUE. 3. In the same April 14, 2011 decision, the Board also determined that a March 28, 1983 Board decision which denied a rating in excess of 10 percent for chronic lumbosacral strain with traumatic arthritis of the low spine did not contain clear and unmistakable error. 4. There was no outcome determinative error of fact or law in the Board's April 2011 decision finding that the March 1983 Board decision did not contain CUE. CONCLUSIONS OF LAW 1. The April 14, 2011 Board decision which determined that the August 6, 1982 Board decision did not contain CUE is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2013). 2. The April 14, 2011 Board decision which determined that the March 28, 1983 Board decision did not contain CUE is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially notes that the Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The statutory and regulatory provisions of the VCAA do not, however, apply to allegations of clear and unmistakable error in prior decisions of the Board. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). The Board notes that the moving party was provided with appropriate notice in connection with his motion in August 2011. The April 14, 2011 decision determined that Board decisions of August 6, 1982 and March 28, 1983 did not contain clear and unmistakable error. The August 1982 Board decision denied service connection for ankylosing spondylitis of the hips, and the March 1983 Board decision (in pertinent part) determined that a rating in excess of 10 percent for chronic lumbosacral strain with traumatic arthritis of the low spine was not warranted. In connection with his challenge to the August 1982 and March 1983 Board decisions, the Veteran had argued that the evidence at the time of those decisions showed he was 100 percent disabled, including due to ankylosing spondylitis. The evidence before the Board at the time of the April 2011 decision showed that service connection for low spine disability (described as recurrent lumbosacral strain) was granted in December 1970; a 10 percent evaluation was assigned. In a December 1971 rating decision, the disability evaluation was reduced to noncompensable. In December 1977, the Veteran filed a claim for an increased rating for the low spine disability. A May 1978 decision denied that claim, and also denied service connection for ankylosing spondylitis, which was identified during a March 1978 VA examination. In March 1980, the Veteran attended a rating board hearing, at which time the evaluation then assigned the service-connected lower back disorder was described as noncompensable; he was noted during the hearing to use a back brace for ankylosing spondylitis. In an August 1980 decision, VA increased the disability evaluation assigned the service-connected low spine disability to 10 percent, and continued to deny service connection for ankylosing spondylitis. In the August 1982 decision, the Board denied the Veteran's claim of service connection for ankylosing spondylitis, granted service connection for traumatic arthritis of the lumbar spine, and remanded the issue of entitlement to an increased rating for lumbosacral strain. In an October 1982 rating decision, the RO reduced the evaluation assigned the lumbosacral strain to noncompensably disabling. In the March 1983 decision, based on a finding that the Veteran had traumatic arthritis of the low spine, the Board restored a 10 percent evaluation for low spine disability but denied more than 10 percent for that disability. In the April 2011 decision, the Board acknowledged the Veteran's allegations of CUE regarding the August 1982 and March 1983 decisions, noting that the Veteran essentially alleged that the evidence at the time of both decisions showed that he had ankylosing spondylitis as early as the 1970's, and that it was exacerbated by his service-connected low spine disability. The Board also noted that in support of his assertions, the Veteran indicated that the evidence showed his disability had been static since 1970, and that he had a disability within a year of service discharge. The Board also acknowledged that the Veteran's representative at the time initially indicated that the Veteran sought a 100 percent disability evaluation effective from the December 1970 rating decision granting service connection for low spine disability, but later clarified that the Veteran was seeking service connection for ankylosing spondylitis as of the December 1970 decision, with appropriate (i.e., 100 percent) evaluations throughout that time. The Veteran contended that the spondylitis was an exacerbation of the service-connected low spine disability. The Board's April 2011 decision specifically explained that the statutory authority for the Board to reverse or revise a prior Board decision was found in 38 U.S.C.A. § 7111, and that motions for review of prior Board decisions on the grounds of CUE were adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. The Board explained that, pursuant to 38 C.F.R. § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. The Board also explained that the determination of whether a prior Board decision was based on CUE must be based on the record and the law that existed when that decision was made, pursuant to 38 C.F.R. § 20.1403(b)(1). The Board noted that CUE was 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, and explained that, generally, this meant that 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, citing to 38 C.F.R. § 20.1403(a). The Board explained that 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 that, had it not been made, would have manifestly changed the outcome when it was made, and the Board provided examples of situations that were not CUE, including VA's failure to fulfill the duty to assist, and disagreement as to how the facts were weighed or evaluated. The Board first found that the Veteran had advanced arguments which alleged CUE with the requisite specificity as to both prior Board decisions. As to the August 6, 1982, decision, the Board's April 2011 decision noted that the evidence showed the ankylosing spondylitis was not present in service or at separation from service, and that the first diagnosis of such was not until many years after active service and could not be etiologically related to service. As to the March 28, 1983, decision, the Board noted that the evidence at the time of the decision additionally included a March 1978 radiographic report showing mild spur formation at the lumbosacral level with some component of intervertebral disc space narrowing; and the report of an October 1982 VA examination revealing no residuals of chronic lumbosacral strain with secondary traumatic arthritis other than slight limitation of backward extension. The Board noted that at the time of the August 1982 and March 1983 Board decisions, the laws and regulations governing claims of service connection and increased ratings were essentially the same as in 2011. Specifically, the Board cited to 38 U.S.C. § 3.10 (1982) as establishing that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by war-time service, and cited to 38 U.S.C. §§ 312, 313 (1982) and 38 C.F.R. § 3.307 (1982) to establish that if ankylosing spondylitis became manifest to a degree of ten percent within a year of termination of service, it shall be presumed to have been incurred in service. As for the March 1983 decision, the Board noted that the decision informed the Veteran that a noncompensable rating was applicable for lumbosacral strain where there was only slight subjective symptoms, and that a ten percent rating was warranted for lumbosacral strain where there was characteristic pain on motion, citing to 38 C.F.R. Part 4, Code 5295 (1982). The March 1983 decision also noted that arthritis was rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, and that when the limitation of motion of the specific joint or joints involved was noncompensable under the appropriate diagnostic codes, a rating of ten percent was for application for each such major joint or groups of minor joints affected by limitation of motion. 38 C.F.R. Part 4, Code 5010 (1982). The Board's April 2011 decision noted that the August 6, 1982, decision denied service connection for ankylosing spondylitis on the basis that it was not present in service or at separation from service, that the first diagnosis of such was not until many years after active service, and that it was not etiologically related to service. The Board noted that the August 1982 decision apparently relied on the medical judgment provided by the medical member of the panel deciding the appeal, which the Board noted was permitted at the time, citing to Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995). The Board noted that the March 28, 1983, decision increased the Veteran's disability evaluation for low spine disability to 10 percent disabling, finding that the criteria for a 10 percent rating had been met, and in granting the 10 percent rating but not higher, the Board again apparently relied on the medical judgment provided by the medical member of the panel deciding the appeal. The Board's April 2011 decision pointed out that at the time of the August 1982 and March 1983 decisions, the Board was not precluded from relying upon its own medical judgment to support its conclusions. Cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board cannot substitute its own medical judgment for that of medical professionals). The Board also noted that, as both the August 6, 1982, and March 28, 1983, decisions involved a medical member of the panel, it could not be said that all the evidence of record supported the moving party's position, and that the panel in both Board decisions was entitled to rely on the medical judgments of the medical members in deciding both appeals. The Board in April 2011 consequently concluded that the Veteran had not established that the correct facts, as they were known at the time, were not before the Board on either August 6, 1982, and/or March 28, 1983, and that he had not shown that, but for incorrect application of statutory or regulatory provisions, the outcome of the claims would have been manifestly different. Motions for revision of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Rules of Practice of the Board at 38 C.F.R. Part 20. Clear and unmistakable error 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. 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. Review for CUE in a prior Board decision must be based on the record and law that existed when that decision was made. 38 C.F.R. § 20.1403. See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). 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 include a new medical diagnosis that corrects an earlier diagnosis considered in the Board's decision; the Secretary's failure to fulfill the duty to assist; or a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board's decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). As the moving party, the Veteran in this case has met the basic filing requirements of 38 C.F.R. § 20.1404(a). The Veteran has also set forth a clear and specific allegation of CUE in the April 14, 2011 Board decision and has pleaded an error as to the facts with sufficient specificity to enable the Board to decide the motion to revise on the merits. The Veteran contends that the April 14, 2011 Board decision was not based on the correct facts as they were known at the time. Specifically, he refers to a statement made during a "Fort Miley" hearing, by which he apparently means the March 1980 rating board hearing. The statement in question concerned the characterization of the rating assigned his back disorder at the time of the hearing, namely that it was rated as noncompensably disabling. He indicates that the August 1982 and March 1983 Board decisions necessarily relied on this purportedly inaccurate characterization of his lower back rating, as did the April 2011 Board decision, and he suggests that had all the Board decisions accurately acknowledged his correct disability rating, each one of the Board decisions, including the April 2011 Board decision, would have come to a different result. The Board first points out that the pertinent inquiry in the current motion is not whether the August 1982 and March 1983 Board decisions contained CUE. Those matters were decided in the April 2011 Board decision, and are no longer subject to challenge on the basis of CUE. See 38 C.F.R. § 20.1409(c); Hillyard v. Shinseki, 24 Vet. App. 343 (2011). The pertinent inquiry instead is whether the Board's April 2011 decision itself contains CUE. The record reflects that the April 2011 Board decision reviewed the evidence of record at the time of both decisions, and described the basis for the denial in both actions. The Board accurately noted the presence of a medical member of the panel in each case. The Board noted that both decisions cited to the appropriate law in denying the respective claims. The April 2011 Board decision itself identified the appropriate law and regulations pertaining to addressing whether a Board decision contains CUE. At the time of the April 2011 decision, the Veteran's CUE arguments did not involve any allegation that the August 1982 or March 1983 decisions applied extant law or regulations incorrectly. His sole basis for CUE at the time was that the evidence should have been weighed differently (and in his favor) in both decisions. The Board's April 2011 decision acknowledged this contention, but found that this was not undebatable, as there was at least one medical opinion to the contrary in each Board decision, namely that of the medical member of the panel. The Board correctly noted that, prior to the Court's current caselaw on the matter, the Board was permitted to rely on its own medical judgment. Given that the evidence before the Board in August 1982 and March 1983 thus was not uniformly in the Veteran's favor, the April 2011 Board decision concluded that the result reached in both decisions was not undebatably erroneous, and that therefore there was no CUE in either decision. The Board finds that the April 2011 decision was based on the correct law and facts as they were known in April 2011, and that there otherwise was no error in the decision that was outcome determinative. The Veteran and his representative do not dispute that the April 2011 Board decision applied the correct law and regulations in addressing whether the two prior Board decisions contained CUE. Instead, he argues that the correct facts as they were known at the time were not before the Board. Specifically, he contends that the March 1980 rating board hearing incorrectly noted that he was receiving a noncompensable evaluation, and that therefore both the August 1982 and March 1983 rating actions erroneously relied on an inaccurate factual understanding of his lower back disorder. The Board points out, however, that at the time of the March 1980 rating board hearing, he in fact was in receipt of a noncompensable rating for his lower back disorder. The December 1971 rating action reduced the evaluation to zero percent, and although the Veteran currently maintains that he received notice from VA that his 10 percent rating had continued uninterrupted since service, this is not substantiated by the record. It was not until an August 1980 rating action that the Veteran's lower back disorder was again evaluated as 10 percent disabling, and the August 1982 Board decision acknowledged that the disorder was evaluated as 10 percent disabling. After the August 1982 decision, the evaluation assigned the disorder was again reduced to noncompensable, and remained so until the March 1983 Board decision, which restored the 10 percent evaluation. In short, the Veteran's assertion that the August 1982 and March 1983 Board decisions were based on an inaccurate factual understanding, and consequently that the April 2011 Board decision was based on the same understanding is unsupported by the record. As the record thus does not substantiate the presence of any error in the April 2011 Board decision, it is unnecessary to address whether any claimed error was outcome determinative. The Veteran's sole allegation of error, namely that the facts as they were known at the time of the April 14, 2011 Board decision were not before the Board, is not substantiated by the record. The record otherwise shows that the April 2011 Board decision was based on the correct law and facts as they were known at the time. There was no error in the decision which would have manifestly changed the outcome. There was also no rare kind of error, to which reasonable minds could not differ, that would have led to a result manifestly different but for the error. See 38 C.F.R. § 20.1403. For the foregoing reasons, the Board does not find that the April 14, 2011, Board decision should be revised or reversed on the grounds of CUE. Because the Veteran submitted a specific allegation of CUE, a denial of the motion on the merits, rather than dismissal without prejudice, is appropriate. See Simmons v. Principi, 17 Vet. App. 104 (2003). ORDER The motion to revise or reverse the April 14, 2011 decision of the Board, which determined that clear and unmistakable error did not exist in August 6, 1982 and March 28, 1983 Board decisions, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs