Citation Nr: 1612490 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 08-20 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral hip disability, to include as secondary to right knee chondrocalcinosis articularis with secondary degenerative joint disease. 2. Entitlement to service connection for a low back disorder, to include as secondary to right knee chondrocalcinosis articularis with secondary degenerative joint disease. 3. Entitlement to service connection for a neck disorder. 4. Whether clear and unmistakable error (CUE) occurred when service connection for residual, right shoulder injury was denied in a February 1960 rating decision. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to April 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2008, November 2009, October 2010 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In December 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This case was previously before the Board in March 2012, April 2014, and November 2014. In March 2012, the Board issued a decision that denied the appealed claims of entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for residuals of a head injury, and entitlement to service connection for hypertension and remanded several issues, including the above issues. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013) and the request of the Veteran, the decision was vacated and a new decision was issued in April 2014. In April 2014, the service connection claims were remanded. In the November 2014 remand, the Board found there had not been substantial compliance with the mandates of the remand order. For the reasons discussed below, the Board finds that the claims must again be remanded for compliance with the remand order. In regard to the Veteran's CUE claim, since the November 2014 remand, the Veteran perfected an appeal to the Board. Thus, the Board has jurisdiction to address the claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a bilateral hip disability, a low back disorder, and a neck disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By a rating decision entered February 11, 1960, the RO denied the Veteran's claim of entitlement to service connection for residuals, right shoulder injury. 2. The correct facts, as they were known at that time, were before the RO on February 11, 1960, and the RO correctly applied the statutory and regulatory provisions then in effect. The decision was supported by evidence then of record and was consistent with the law and regulations then in effect. CONCLUSION OF LAW There was no CUE in the February 11, 1960 rating decision that denied service connection for residuals, right shoulder injury. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As a matter of law, the Veteran's Claim Assistance Act (VCAA) is not applicable to the claim that a February 1960 rating decision that denied service connection for residuals, right shoulder injury, contained CUE. Indeed, the Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that such a matter involves an inquiry based upon the evidence of record at the time of the decision rather than the development of new evidence. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001); VAOPGCPREC 12-2001 at para. 7 (July 6, 2001) (VA does not have "a duty to develop" a CUE case because "there is nothing further that could be developed"); see also Livesay v. Principi, 14 Vet. App. 324, 326 (2001); Parker v. Principi, 15 Vet. App. 407 (2002). II. Legal Criteria and Analysis In a February 11, 1960, rating decision, the RO denied entitlement to service connection for residuals, right shoulder injury. The Veteran did not file a notice of disagreement with the rating decision. In general, in the absence of CUE, rating decisions that are not timely appealed are final. In a June 2009 statement, the Veteran stated that, You mention the earlier denial for shoulder condition. This may have been during the "not well grounded" days. Based on this alone I deserve a new opinion. Additionally this was claimed within a year of discharge which makes it presumptive direct service connection and warrants review for CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43 . Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a); 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., 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. Second, 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." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14 . As more than 50 years have passed since the February 1960 rating decision, many laws and regulations have changed and such changes cannot be considered in determining whether CUE was committed. As an initial matter, the requirement for the Board and the RO to provide a detailed statement of reasons and bases was not applicable at the time of the challenged decision. Natali v. Principi, 375 F.3d 1375 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Joyce v. Nicholson, 19 Vet. App. 36 (2005) (in general for the proposition that because the law prior to the enactment of the Veterans' Benefits Amendments of 1989 did not require VA to set forth in detail the factual bases for its decisions; nor provide in depth discussion of applicable law, the failure to do so was not clear and unmistakable legal error at the time of such decisions, and the adjudicators were presumed to have made the requisite findings under a presumption of validity). In a February 2015 substantive appeal, the Veteran stated that "Please continue to consider the right shoulder condition. VA should have provided a new evaluation of the shoulder. When there is trauma to a joint, often the symptoms emerge much later as traumatic arthritis or other related conditions. VA has not adequately provided assistance to the June 2009 requested to have the shoulder considered." The Board notes that entitlement to service connection for residual, right shoulder ACJ separation progressed to arthritis of ACJ (dominant) was granted in an April 2013 rating decision, effective May 14, 2009. Additionally, only the evidence of record at the time of the February 1960 rating decision is relevant to the Veteran's CUE claim. The February 1960 rating decision denied entitlement to service connection for residuals of a right shoulder injury because there was no evidence of a current right shoulder condition related to the right shoulder injury the Veteran was treated for in service. The evidence of record at that time consisted of service treatment records, the Veteran's claim for service connection, and a January 1960 VA examination. The Veteran's service treatment records showed treatment for a right shoulder contusion in August 1957 while playing organized softball. Impression at that time was dislocation, joint, right shoulder, simple. It was felt the Veteran had a transient dislocation. He was treated with an arm sling for three weeks. Range of motion returned to normal and the Veteran was asymptomatic by September 1957. The Veteran's March 1959 separation examination report showed no finding or diagnosis of a shoulder condition. In the January 1960 VA examination report, no residuals or recurrences of the right shoulder injury were noted clinically at that time. The VA examiner noted that he had a "Normal right shoulder joint. No evidence found of any orthopedic disability on physical examination." On examination, the Veteran had a perfect range of motion at the right shoulder joint in every direction. The Board finds that the RO did not commit CUE in the February 1960 rating decision by finding that the Veteran did not have residuals of a right shoulder injury at that time. This was consistent with the evidence of record, including the VA examination report. Additionally, at the time of the February 1960 rating decision, the rating board was permitted to rely on its own medical judgment to support its conclusions in weighing the service and post service clinical evidence. It was not until 1991 that a VA rating board was precluded from substituting its own medical judgment for that of a medical professional. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). A physician medical member of the rating board participated in the February 1960 rating decision, and signed the determination, affirming his or her agreement with the finding that the eye condition preexisted service and was not aggravated by service. See MacKlem v. Shinseki, 24 Vet. App. 63 (2010), aff'd Macklem v. Shinseki, 446 Fed. Appx. 310 (Fed. Cir. Jan 11, 2012) (unpublished); see also Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the VA's position was substantially justified in a pre-Colvin decision relying on its own medical judgment). As such, the opinion of the medical member of the rating board was considered along with the service records and VA examination report. The Veteran's disagreement with the February 1960 rating decision is based on a disagreement as to how the facts were weighed or evaluated, which does not support a finding of CUE. Although the Veteran has since been granted entitlement to service connection for a right shoulder disability, the February 1960 rating decision's denial of the claim was consistent with the evidence of record at that time. The Board acknowledges that the February 1960 rating decision does not reflect extensive consideration and analysis of the evidence or applicable regulations. However, RO determinations were not required to include the reasons for denying a claim until February 1, 1990. See 38 U.S.C.A. § 5104(b); Veterans' Benefits Amendments of 1989, Pub. Law. No. 101-237, § 115(a)(1), 103 Stat. 2062, 2065-66 (1989); see also Natali v. Principi, 375 F.3d 1375, 1379-81 (Fed. Cir. 2004) (holding that 1945 RO's finding that Mr. Natali's disability was due to a defect in the form and structure of the eye, held to be of a congenital or developmental origin, although not phrased in the exact language, was fully equivalent to factual findings that Mr. Natali's disability was not aggravated by service, and that although the RO did not expressly state that it had made its findings based on clear and unmistakable evidence, the board's statement that there was no evidence of any superimposed disability during service which could have caused or aggravated the congenital condition demonstrates that the RO understood that its findings on those issues needed to satisfy a high standard of proof ); Pierce v. Principi, 240 F.3d 1348, 1355-56 (Fed. Cir. 2001) (holding that, given presumption of validity that attaches to RO decisions and fact that 1945 RO was not required to set forth factual bases for decision, in absence of evidence to contrary RO is presumed to have made requisite factual findings). Accordingly, absent evidence to the contrary, and consistent with the above-cited holdings, the Board will presume the RO correctly discharged its official duties, to include consideration of all evidence then of record, and properly considered and applied of all relevant laws and regulations. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992). In sum, the Board finds that the Veteran has not established that the correct facts, as known at the time, were not before the RO in February 11, 1960, and has not shown that any incorrect application of statutory or regulatory provisions was outcome determinative (i.e., the outcome would have been manifestly different). Thus, the Board finds there was no CUE in the February 11, 1960 rating decision and the determination is final. ORDER Revision on the basis of CUE in the February 11, 1960 rating decision is denied. REMAND The Board regrets that the Veteran's claims for service connection must again be remanded for new opinions. In the November 2014 remand, the Board requested opinions as to whether it is at least as likely as not that the Veteran's bilateral hip, cervical spine, and/or lumbar spine disability is related to or had its onset during service, including the Veteran's noted injury to his head during service. The Board also requested that the examiner opine as to whether the Veteran has a bilateral hip and/or lumbar spine disability that is secondary to or aggravated by his service-connected right knee disability. The examiner was specifically requested to consider the Veteran's statements regarding his in-service injuries due to sports and his head injury (e.g. October 2014 statement), and address them in the rationale for the opinions. For purposes of the opinion, the examiner was requested to assume that the Veteran's statements regarding his in-service injuries were credible. The Veteran was provided with VA opinions in December 2014. However, the VA examiner did not address whether the Veteran's bilateral hip, cervical spine, and/or lumbar spine disability were related to or had their onset during service, including the Veteran's noted injury to his head. The examiner also only addressed whether the Veteran's bilateral hip and/or lumbar spine disability were due to or the result of his service-connected right knee disability, not whether the disabilities were directly related to service. The examiner also failed to address the Veteran's claimed bilateral hip disability or specifically address whether the disabilities were aggravated by the service-connected disability. Additionally, the VA examiner did not address the Veteran's lay statements regarding his in-service injuries as requested in the November 2014 remand. Where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the December 2014 VA opinions did not comply with the mandates of the November 2014 remand, the claims must again be remanded for new VA opinions. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the claims file to a VA examiner of appropriate expertise to provide opinions as to: (a) Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's (i) bilateral hip, (ii) cervical spine, and/or (iii) lumbar spine disability (to include sacroiliac arthrosis of the hip, osteoarthritis of the lumbar and cervical spines, lumbosacral strain, cervical strain and degenerative arthritis of the lumbar and cervical spine) is related to or had its onset during service, including the Veteran's noted injury to his head during service. (b) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a (i) bilateral hip and/or (ii) lumbar spine disability that is caused or aggravated by his service-connected right knee disability. The examiner should consider the Veteran's statements regarding his in-service injuries due to sports and his head injury (see October 2014 statement), and address them in the rationale for the opinions. For purposes of the examination, the examiner should assume that the Veteran's statements regarding his in-service injuries are credible. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issues on appeal of entitlement to service connection for a bilateral hip disability, a low back disorder, and a neck disorder. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals 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 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs