Citation Nr: 1645846	
Decision Date: 12/07/16    Archive Date: 12/19/16

DOCKET NO.  15-02 795	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Whether there was clear and unmistakable error (CUE) in the May 21, 1999, rating decision that denied service connection for a right knee disability, to include posttraumatic degenerative changes.  


REPRESENTATION

Appellant represented by:	Daniel Krasnegor, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Devon Rembert-Carroll, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1944 to January 1948.  The Veteran is in receipt of the Combat Infantry Badge.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

The Veteran testified in front of the undersigned Veterans Law Judge at a Board video-conference hearing in August 2015.  A copy of the transcript from that hearing has been reviewed and associated with the claims file.

In a November 2015 decision, the Board found that there was no CUE in the October 1998 and May 1999 rating decisions and denied reopening the previously denied claim of entitlement to service connection for a right knee disability, to include posttraumatic degenerative changes.  The Veteran appealed the portion of the decision finding no CUE in the October 1998 and May 1999 rating decisions to the United States Court of Appeals for Veterans Claims (Court).  In a May 2016 memorandum decision, the Court affirmed the portion of the Board decision that found no CUE in the October 1998 rating decision, and vacated and remanded the portion of the Board decision that found no CUE in the May 1999 rating decision.  Also, that portion of the Board's November 2015 decision that denied reopening a previously denied claim for service connection for post-traumatic degenerative arthritis of the right knee was not challenged on appeal and remains undisturbed.  

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).

This appeal was processed using the Veterans Benefits Management System (VBMS).  A review of the Veteran's Virtual VA claims file reveals the August 2015 Board hearing transcript.  


FINDINGS OF FACT

1.  In a final decision issued in May 1999, the RO denied the Veteran's claim of entitlement to service connection for a right knee disability, to include posttraumatic degenerative changes. 

2.  The Veteran has not alleged an error of fact or law in the May 1999 rating decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.


CONCLUSION OF LAW

Clear and unmistakable error has not been shown in the May 1999 rating decision.  38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  However, in Livesay v. Principi, 15 Vet. App. 165 (2001), the Court held that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions."  The Court in Livesay held that CUE claims are not conventional claims, but rather are requests for revisions of previous decisions.  A claim of CUE is not by itself a claim for benefits.  Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process.  A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision.  Thus, a "claimant," as defined by 38 U.S.C.A. § 5100, cannot encompass a person seeking a revision of a final decision based upon CUE.  As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to the Veteran's CUE claim.

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judges in August 2015.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the Veteran has not raised any deficiency with the hearing.  See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

CUE

An October 1998 rating decision denied the Veteran's claim of entitlement to service connection for a right knee disability.  The Veteran was notified of this decision by way of a letter dated October 29, 1998.  Within one year of that letter, the Veteran submitted a December 1998 private medical statement.  See 38 C.F.R. § 3.156(b) (1998, 2015).  The RO then reconsidered the October 1998 decision.  In a May 1999 rating decision, the RO continued the denial.  The Veteran was notified of that decision by way of a letter dated May 27, 1999.  The Veteran filed a notice of disagreement in June 1999.  The Veteran was then issued a statement of the case in June 1999.  However, the Veteran did not submit a timely substantive appeal and the decision became final.  See 38 C.F.R. § 19.32 (1998, 2015).  

A previous determination which is final and binding will be accepted as correct in the absence of CUE.  Where evidence establishes such error, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, a rating or other decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the 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 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.  Even where 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 CUE.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

There is a three-part test to determine whether a prior decision was based on CUE: (1) either the correct facts, as the facts were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort which, had the error not been made, the outcome would have changed; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

Simply to claim clear and unmistakable error on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error, 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 clear and unmistakable error.  Fugo, 6 Vet. App. 40, 44.

Therefore, the essence of a CUE claim is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office.  Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994).  As such, there is a presumption of validity which attached to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger.  Fugo, 6 Vet. App. at 44 (citations omitted).  Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who attempts to establish prospective entitlement to VA benefits.  See generally Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).  

In this case, the pertinent laws and regulations at the time of the May 1999 rating decisions were essentially the same as they are now.  Specifically, 38 C.F.R. § 3.303(a) provided that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 C.F.R. § 3.303(a) (1998).  Further, 38 C.F.R. § 3.303(b) provided that for a chronic disease service connection is warranted if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (1998).  Service connection could also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307, 3.309(a) (1998).

As noted in the May 2016 memorandum decision, the Veteran's main contention is that the May 1999 rating decision was the product of CUE because all of the evidence then of record supported a grant of service connection for a right knee disability and, but for the RO's misapplication of law culminating in the improper rejection of Dr. Haley's positive linkage opinion due to a lack of personal knowledge, the RO would have granted his claim.  The Veteran also argues that the Board did not cite any authority imposing a requirement in May 1999 that a medical professional have personal knowledge of an in-service injury to provide a competent and probative linkage opinion, nor did it discuss that finding in light of relevant authority that seems to suggest a contrary result.  See, e.g., FED. R. EVID. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. . . . This rule does not apply to a witness's expert testimony under Rule 703."), 703 (authorizing an expert to base an opinion on, inter alia, "facts or data in the case that the expert has been made aware of"); see generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (observing that private physicians offering medical opinions in veterans benefits cases are "nothing more or less than expert witnesses").

At the outset, the Veteran's argument that the RO in May 1999 imposed a requirement not permitted by law, when it rejected the December 1998 medical statement, must fail, as this argument is premised on the assumption that the VA adjudication in May 1999 was bound by the Fed. R. Evid 602, which-as explained below-it was not.

Notably, the Court has previously observed that many principles espoused in the Federal Rules of Evidence have no place in veterans' jurisprudence other than to assists in the articulation of the reasons for the Board's decision.  See Rucker v. Brown, 10 Vet. App 67, 73 (1997); see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994).  The Board notes that the VA claims adjudication process is paternalistic and nonadversarial.  Nagler v. Derwinski, 1 Vet. App. 297, 301 (1991).  In keeping with this setting, evidence offered in opposition to-and in support of-a claim for VA benefits is not subject to formal evidentiary principles.  See, e.g., Robinette v. Brown, 8 Vet. App. 69, 74-75 (1995) (noting that the Federal Rules of Evidence are not applicable to VA adjudication proceedings, and citing Flynn, supra, and 38 C.F.R. § 20.700 (c) (1994) (VA adjudication proceedings not "limited by legal rules of evidence")); see generally Fed. R. Evid., Article VII; see also 38 C.F.R. § 3.303(a) (1993) (regarding service connection, VA must consider "the basis of the places, types and circumstances of [the veteran's] service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence.") (emphasis added).  As such, the Federal Rules of Evidence were not binding at the time of the May 1999 rating decision; and, as of current, they are still not binding on VA adjudications.  See Nieves-Rodridquez, 22 Vet. App. at 302.  In view of that fact, and because the RO's adjudication in May 1999 was neither limited by nor subject to formal evidentiary principles, when it rejected the December 1998 medical statement, the Veteran's argument amounts to a disagreement as to how the RO weighed the evidence of record, which cannot constitute CUE.  See Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14.

Even assuming, arguendo, that the Federal Rules of Evidence did apply, Fed. R. Evid. 602, goes to whether the expert is "competent" to provide the opinion being proffered; competency, however, must be distinguished from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted as a part of the record.  See Rucker v. Brown, 10 Vet. App at 74.  In other words, because a physician is qualified by medical credentials, training, knowledge, experience or expertise, there is no need to question the competency of the physician to formulate his or her opinion based on the facts and data to which the physician has been made aware.  Nonetheless, this rule of evidence does not negate VA's authority to evaluate and assess an expert's opinion that is being proffered; and, in so doing, when compared against the other evidence of record, reject that opinion because it lacked credibility and probative value to support a finding of nexus.  As such, the Board, as well as the RO, has the duty to assess the credibility and weight given to the evidence.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992); see also Wood v. Derwinski, 1 Vet. App. 190 (1991); Gilbert v. Derwinski, 1 Vet. App. 499 (1990).  

In this regard, the evidence on file at the time of the May 1999 rating decision included the Veteran's service treatment records; the Veteran's DD Form 214 that shows he received the Combat Infantry Badge; a January 1948 application for service connection for a right knee condition; an August 1951 VA examination; a July 1998 statement from the Veteran's cousin; and a December 1998 private opinion.  

As noted above, the Veteran's service treatment records prior to December 1946 are not available.  A December 1946 reenlistment examination shows that the Veteran reported no serious injuries, illnesses, or operations.  On physical examination the Veteran had no musculoskeletal defects.  A November 1947 neuropsychiatric hospital admission shows that the Veteran reported a history of being a platoon runner until a right patella injury while on guard duty on December 22, 1944.  The Veteran was then switched to duties of linesman and switch board operator.  During the Veteran's hospital stay, physical examination revealed that the Veteran's bones and joints and muscular system were noted as normal.  

The January 1948 application for VA benefits shows that the Veteran reported that his right knee was bothered by change in weather.  The Veteran reported that he had difficulty in walking or standing for any length of time.  The Veteran reported that a brick from a building fell on his leg while he was on guard in France in January 1946.  

The August 1951 VA examination shows that the Veteran reported that sometime in the latter part of 1944 or the early part of 1945, when he was on guard duty in an old building in France near the German border the building collapsed.  He reported that his right knee was under a number of parts of the building and although it was not actually struck, there was a great deal of pressure on it.  The Veteran reported that at the time of the examination, his right knee ached during damp and cold weather.  The Veteran reported that he thought he had "a sort of rheumatism in it".  On physical examination, the appearance of the right knee was normal.  There was no limitation of motion.  There was no abnormal mobility.  The examiner noted that the Veteran was able to squat without difficulty and there was no abnormal crepitus.  X-rays of the right knee were normal and the examiner diagnosed arthralgia, right knee, or right knee pain.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 150 (32nd ed. 2012);

In the July 1998 statement, the Veteran's cousin reported that he remembers as a child hearing his parents talk about the Veteran's knee injuries and reading letters from him stating the same.  The Veteran's cousin reported that he knows the Veteran was transferred from being a foot soldier to lighter duty as a result of his injury.  He reported that when the Veteran came home his right knee would bother him when they went fishing because of the discomfort he felt when walking on uneven ground.  The Veteran's cousin reported that this was in the late 1970s.

In a December 1998 private opinion, Dr. Phillip Haley wrote that he was writing to confirm that the problems the Veteran was experiencing with his right knee date from an injury while on active duty in military service during World War II.  Dr. Haley noted that examination and x-rays and MRI scanning confirmed the presence of posttraumatic degenerative changes in the knee. 

In the May 1999 rating decision, the RO noted that available service medical records show that during a neuropsychiatric admission on November 17, 1947, the Veteran gave a history of having been a platoon runner until he sustained a right patella injury while on guard duty sometime after December 22, 1944, with subsequent transfer to the duties of a linesman and switchboard operator.  The RO noted that however, the records of that initial injury were not available.  The RO noted that during the hospital admission of November 17, 1947, the Veteran's bones and joints were found to be normal.  The RO noted that the VA examination of August 14, 1951, found the knee to look normal.  There was no limitation of motion and no abnormal mobility.  The Veteran was able to squat without difficulty, and there was no abnormal crepitus.  The RO noted that an x-ray found the right knee to be normal.  The RO noted the statement from the Veteran's cousin that related that he remembers his parents discussing the Veteran's knee injury, and that the Veteran had discomfort in the knee following his return from service.  The RO noted that the Veteran has furnished a statement from Dr. Haley which reported that examination, x-rays and MRI scanning confirmed the presence of post traumatic degenerative change in the right knee.  The RO noted that however, there was no indication that Dr. Haley had personal knowledge of the injury, and there was no evidence that these post traumatic degenerative changes were either diagnosed in service or manifested itself to a compensable degree within one year following the Veteran's separation from active duty.  The RO also noted that there was no evidence of a disability continuously since the Veteran's separation from active duty.  The RO concluded that therefore, the previous denial of service connection for a right knee disability to include post traumatic degenerative changes was continued.

Again, the Board notes that it has the duty, as does the RO, to assess the credibility and weight given to the evidence.  Based on the above, the Board finds that this is what the RO did in the May 1999 rating decision.

First, the RO applied 38 U.S.C.A. § 1154(b) (West 1991, 2014) in accepting that the Veteran's reported in-service injury did in fact occur.  Additionally, the RO admitted into the record Dr. Haley's conclusion that the Veteran had a current diagnosis of posttraumatic arthritis, as he was qualified by experience or competence to proffer such a diagnosis.  In regards to a nexus opinion, the RO also admitted into the record the opinion provided by Dr. Haley, as he was again qualified by experience or competence to proffer such an opinion.

The RO then fulfilled its duty to assess the credibility and probative value of Dr. Haley's opinion after it was admitted and considered a part of the record as competent evidence.  As is true with any piece of evidence, the credibility and weight to be attached to this medical statement was well within the province of the RO adjudicator.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  As such, the RO had every right to evaluate the credibility and weight of the history upon which Dr. Haley's medical opinion was predicated.  In this function, the RO also had the right to impeach that same medical opinion on the grounds that, unless there was some other basis for the physician's opinion, such as his personal knowledge of the injury sustained in service, his opinion, which purported to have relied on the facts and data in this case, lacked sufficient reliability upon which credibility and probative weight could attach, because it was at variance when compared against other medical evidence of record.  Specifically, the evidence on file in May 1999 disclosed that while the service treatment records referred by history to the Veteran having sustained a right patella injury in December 1944, the service treatment records dated after the occurrence of that injury revealed, when the Veteran was examined in December 1946 for purposes of reenlistment, he reported no serious injuries, illnesses, or operation, and his physical examination at that time revealed no musculoskeletal defects.  Upon hospital admissions in November 1947, physical examination revealed that the Veteran's bones and joints were normal, as was his muscular system.  And, when the Veteran was examined by VA in August 1951, the Veteran's knee was found to be normal, as was the x-rays of his knee.

The Board also notes that the RO did not rely solely on the physician's lack of personal knowledge in assessing the credibility and probative value of the opinion.  As noted above, the RO also stated that there was no evidence that these post traumatic degenerative changes were either diagnosed in service or manifested itself to a compensable degree within one year following the Veteran's separation from active duty.  The RO also noted that there was no evidence of a disability continuously since the Veteran's separation from active duty.  As illustrated above, these conclusions were supported by medical evidence of record on file at the time of the May 1999 rating decision.  It was at this juncture that the RO made its determination in the May 1999 rating action that the Veteran was not entitled to service connection for a right knee disability.  It was well within the RO's jurisdiction to balance the evidence of record, both pro and con, and make such a determination.  The fact that the RO reviewed the previous examinations and x-rays, which were contemporaneous to service and to the several years thereafter, and then compare that same contemporaneous medical data against the information contained in Dr. Haley's statement, was perfectly reasonable and within the RO's purview to weigh the evidence and bases for all opinions and diagnoses given to the Veteran up until that point.  Since the Veteran did not perfect an appeal to the Board following notification of the May 1999 rating action (even though he thought that there was some type of error), his assertion of error now comes under the strict purview of the laws regarding CUE.

Therefore, as the RO properly admitted Dr. Haley's competent opinion into the record and properly assessed the credibility and probative value of that admitted opinion with the other evidence of record, the Board can logically deduce that the Veteran is simply alleging CUE on the basis that the previous adjudication in May 1999 improperly evaluated and weighed the evidence on file at the time of the RO decision, which again can never rise to the level of CUE.  

In regards to the other arguments put forth by the Veteran, the Board notes that at the August 2015 Board hearing, the Veteran's representative asserted that the RO failed to address the January 1948 right knee claim as evidence of continuity of symptoms.  The Veteran's representative also asserted that a 1998 VA examination failed to address the scar on the Veteran's knee.

In regards to the Veteran's assertions that the 1998 VA examination did not consider the Veteran's right knee scar, the Board notes there is no 1998 right knee examination associated with the claims file or any indication that there was a 1998 VA examination conducted on the Veteran's right knee.  Additionally, the Board acknowledges that the rating decision does not specifically note a right knee scar.  Nonetheless, as noted above, in the May 1999 rating decision, the RO accepted the occurrence of the Veteran's in-service injury as the Veteran is a recipient of the Combat Infantry Badge.  See 38 U.S.C.A. § 1154(b) (West 1991, 2014).  Therefore, the Board finds that the Veteran's in-service injury was known to the adjudicators at the time of the May 1999 rating decision.  Therefore, the lack of specific mention and consideration of the Veteran's right knee scar was not a clear and unmistakable error that would have would have manifestly changed the outcome of the rating decision.  

In regards to the Veteran's assertions that the RO failed to address the January 1948 right knee claim as evidence of continuity of symptoms, the Board acknowledges that the May 1999 rating decision does not specifically note or discuss the January 1948 claim.  However, the Board finds that the lay assertions of continuity of symptomatology were known to the adjudicators as the May 1999 rating decision discussed the Veteran's cousin's statement regarding the Veteran's symptoms after service.  Furthermore, even if the Board were to find that the January 1948 claim was undebatable evidence of continuity of symptomatology, the Board -cannot find that it would have manifestly changed the outcome of the and May 1999 rating decision.  In this regards, the Board again notes the RO's discussion of the medical evidence after the reported occurrence of the in-service injury.  Specifically, the 1946 and 1947 physical examinations show that the Veteran's right knee was normal.  Additionally, the August 1951 VA examination resulted in a diagnosis of right knee arthralgia, or right knee pain.  And, on physical examination, the appearance of the right knee was normal; there was no limitation of motion; there was no abnormal mobility; the Veteran was able to squat without difficulty; and there was no abnormal crepitus.  Instead, the Board finds that specifically considering the January 1948 claim would essentially amount to reweighing the lay evidence of continuity with the medical evidence then of record, which, as discussed above, does not rise to the level of CUE.   Finally, the Veteran's assertion that he was treated in service for a knee condition and currently suffers from the same knee condition, is again merely expressing disagreement as to how the evidence was weighed in the May 1999 rating decision.

Therefore, in the Veteran's case, there is no kind of error, of fact or law, that when called to the attention of later reviewers, the Board, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for such error.  See Fugo, 6 Vet. App. at 43-44.  As such, the Board finds that the May 1999 rating decision did not contain undebatable error of fact or law that would have manifestly changed the outcome of the decision to deny service connection for right knee disability.  As a result, the Board determines that there was no CUE based on the record and law that existed at the time of the May 1999 adjudication in question.  Accordingly, the RO's rating decision of May 21, 1999, which denied service connection for a right knee disability, to include posttraumatic degenerative changes, remains a final and binding determination; and the claim or motion for revision or reversal based on CUE must be denied.  38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).


ORDER

The appeal alleging CUE in the May 21, 1999, rating decision that denied entitlement to service connection for a right knee disability, to include posttraumatic degenerative changes, is denied.  



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs