Citation Nr: 1608632 Decision Date: 03/03/16 Archive Date: 03/09/16 DOCKET NO. 15-41 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether a May 1971 rating decision denying service connection for a skin disability should be revised on the grounds of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The April 2015 decision granted the Veteran service connection for his skin disability and assigned it a 30 percent disability rating, but denied CUE in regards to the May 1971 RO decision. In his October 2015 formal appeal to the Board, the Veteran requested a hearing before the Board. In a December 2015 communication, the Veteran's representative related that the Veteran no longer wished to have a hearing. As such, the Board deems the Veteran's hearing request to have been withdrawn. FINDING OF FACT The evidence of record shows that the correct facts, as they were then known, were not before the RO at the time of the May 1971 rating decision, which manifestly changed the outcome of the determination. CONCLUSION OF LAW The criteria for a finding of CUE in the May 1971 rating decision that denied service connection for a skin disability have been met. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In response to his March 2014 claim, the Veteran was granted service connection for a skin disability in an April 2015 rating decision, which assigned the effective date of March 28, 2014. The Veteran asserts that an earlier decision, issued by an RO in May 1971 in response to his March 1971 claim, should have given him service connection for said skin disability, and that the conclusion reached by the May 1971 decision should be reversed and amended due to CUE. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. There is a three-prong test to determine whether a prior determination involves CUE: (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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. Porter v. Brown, 5 Vet. App. 233 (1993). The Veteran's VA and private treatment records and pertinent VA examination reports reflect a current diagnosis of a skin disability during the appeal period. The Veteran asserts that there is clear and unmistakable error in the May 1971 rating decision that denied service connection for a skin disability. The Board agrees. The basis of the May 1971 denial was that the Veteran's service treatment records (STRs) did not show an increase in his pre-existing skin disability. However, at the time of the May 1971 decision, the Veteran's STRs included a November 1969 diagnosis of dermatitis and ongoing complaints of skin problems. The April 1971 VA examination, which took place less than 60 days after the Veteran separated from active service, confirmed the diagnosis of dermatitis. The Veteran entered active service with no dermatitis, and left it with an ongoing diagnosis of dermatitis, which was noted on his exit examination. See September 1968 entrance examination and December 1970 separation examination. The correct facts, as they were then known, were not before the RO at the time of the May 1971 rating decision. In the RO's one-paragraph rationale for denying service connection for eczema dermatitis, the RO stated first and foremost: "Evidence does not show that veteran's skin problems increased in severity beyond natural progress." This statement is incorrect, as the Veteran's STRs show that he entered service with no skin disorder, was diagnosed with one in service, was treated for it repeatedly, and separated from service with a chronic skin disability. In its March 1971 ratings decision, the RO also failed to consider the Veteran's claim for service on a direct basis, and operated under the misapprehension that the Veteran claimed aggravation of a preexisting condition, which he did not claim. Of note is the fact that all the medical opinions in evidence tie the Veteran's skin disorder directly to his active service, relating that the disability started then and has been ongoing since. See November 2014 private opinion, March 2015 VA opinion. This CUE claim does not concern how certain facts were weighed at the time of the prior decision; instead, it concerns a misstatement of fact demonstrating that a key piece of evidence was missed. The error in the May 1971 rating decision is undebatable, and if the RO had been aware of this critical piece of evidence, the outcome of the decision would have been different. In short, the criteria for a finding of CUE in the May 1971 rating decision that denied service connection for a skin disability have been met. The Board is cognizant that the Veteran currently receives a 30 percent disability rating for his skin disability, per the April 2015 rating decision. However, the issue of assigning a specific disability rating from the time of the erroneous May 1971 rating decision is not currently before the Board, only the issue of service connection. ORDER Service connection for a skin disability on the basis of CUE in a May 1971 rating decision is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs