Citation Nr: 1714331 Decision Date: 05/02/17 Archive Date: 05/11/17 DOCKET NO. 86-25 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether there was clear and unmistakable error (CUE) in the May 28, 1987, decision of the Board of Veterans Appeals (Board), which denied service connection for a chronic elbow disorder. REPRESENTATION Moving party represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The moving party is a Veteran who served on active duty from March 1966 to December 1969.December 1969. This matter comes before the Board as an original motion of the moving party to reverse or revise, on the basis of CUE, a Board decision promulgated on May 28, 1987. FINDING OF FACT The May 28, 1987, Board decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions were incorrectly applied. CONCLUSION OF LAW Clear and unmistakable error is not shown in the May 28, 1987, Board decision. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. §§ 20.1400 -20.1411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The CUE claim is not subject to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (holding 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.) As a claim of CUE is not by itself a claim for benefits, CUE is fundamentally different from any other kind of action in the VA adjudicative process. As a consequence, VA's duties to notify and assist are not applicable to CUE motions. The Board notes that the moving party and his attorney have been accorded sufficient opportunity to present his contentions. There is no indication that they have further argument to present. Legal Criteria In May 28, 1987, the Board denied the Veteran's claim of entitlement to service connection for a chronic elbow disorder. The Veteran did not file a motion for reconsideration. At that time decisions of the Board were final when issued with the exception that appeals involving insurance contracts were subject to court review. 38 U.S.C.A. § 7103(a) (formerly 38 U.S.C.A. § 4003(a)). Reconsideration was not ordered with regard to the May 28, 1987 decision. Therefore, the decision is final absent a showing of CUE. The Board has original jurisdiction to consider motions for revision of prior Board decisions. CUE is a very specific and rare kind of error; it is 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. See, e.g., Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) 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; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra. 38 C.F.R. § 20.1403 codifies the current requirements for a CUE motion that the Court of Appeals of Veterans Claims (Court) has defined for motions of CUE in Board decisions as: (1) 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. (2) 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. (3) It is 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. Additionally, 38 C.F.R. § 20.1403(d) gives examples of situations that are not CUE. CUE is not a: changed medical diagnosis; failure to fulfill the duty to assist; disagreement as to how the facts were weighed or evaluated; change in interpretation of a statute or regulation. 38 C.F.R. § 20.1403(c) also indicates that, where it is not absolutely clear that a different result would have ensued, but for the error, the error complained of cannot be CUE. No new evidence will be considered, unless the Board decision was decided on or after July 21, 1992. See 38 C.F.R. § 20.1403(b). In addition, the law precludes remands or other referral for the purpose of deciding the motion. 38 U.S.C.A. § 7111(e); 38 C.F.R. § 20.1405(b). The benefit of the doubt provisions of 38 U.S.C.A. § 5107 (b) are inapplicable in CUE. See 38 C.F.R. § 20.1411 (a). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. Analysis The Veteran's representative argues that the May 28, 1987, denial of service connection for a chronic elbow disorder is the product of CUE. The representative has presented the theory that the Board misapplied the law by failing to sympathetically develop the Veteran's elbow claim to its optimum. The Veteran's representative points to 38 C.F.R. § 3.103(a) and argues that VA had an obligation to assist a veteran in "developing the facts pertinent to the claim," and must "render 'a decision which grants every benefit that can be supported in law." citing Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (enbanc) (noting 38 C.F.R. § 3.103(a) is the regulation setting forth the duty to assist codified in 38 U.S.C. § 5103A)); see also Roberson v. Principi, 251 F.3d 1378 (Fed. cir. 2001) (declaring congress has mandated that the VA is to "fully and sympathetically develop the veteran's claim to its optimum before deciding on the merits"). (Quotation omitted). See also Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004) (Where Federal Circuit held VA has a duty to give sympathetic reading to all claims). Additionally, the representative argues that several instances exist where the Veteran received medical treatment resulting in evidence of several different elbow conditions, but the Board failed to properly consider all of the evidence stemming from Veteran's examinations and treatments and did not grant every benefit that could be supported in law. In support, the representative has presented a list of medical treatment records spanning from the Veteran's military service to July 1986, to include identified attachments for each referenced record. The representative argues that the Veteran met all the requirements for service connection for his elbow condition at the time of the Board's 1987 decision based upon these records, as they show he had several different diagnoses for his elbows, a chronic elbow condition during his military service, and he had continuous problems and treatment for his elbows post-service. However, it is further argued that, rather than sympathetically develop Veteran's bilateral elbow claim to its optimum, the Board explained away all of the evidence of an elbow condition and ignored veteran's sworn testimony, which testimony provided an explanation as to why some VA exams failed to show evidence of arthritis and ulnar neuropathy. In this regard, it was noted that the Veteran's Board hearing transcript dated May 15, 1986 indicated that his physician told him that the X-rays did not show loose bodies from arthritis in his elbow because "they are so small that the bone itself was hiding the particles and that's why no one ever saw it and he said it was a positional sort of thing." It is argued that the Board ignored this evidence and made no attempt to reconcile this evidence with Veteran's case, even though that Veteran had been showing signs of elbow injury since 1967 and had submitted medical evidence indicating he had traumatic arthritis, bursitis, ulnar neuropathy, tendinitis, osteophyte, crepitus, loud snapping in his elbow and at least two physicians (one from 1970 and one from 1986) opined veteran's elbow condition stemmed from his military service. Furthermore, the representative noted that the Board stated, "[T]he clinical documentation of record in its entirety does not support the conclusion that any current left elbow disorder is causally or etiologically related to any acute service injury." To this, the representative argues that service records support that the Veteran's elbow injury was chronic and not acute, citing to a June 1969 service treatment record where veteran had been suffering with elbow pain for two years. It is argued that this same injury continued consistently up to the Board's 1987 decision. The representative argues that the Board attempted to wipe away the evidence of Veteran's in-service elbow injury with x-ray evidence, but the Board failed to sympathetically develop Veteran's claim to its optimum given the multiple types of conditions attributed to veteran's elbow symptoms, some of which could not be conclusively determined by x-ray evidence alone. Last, the representative argues that, had the Board sympathetically developed Veteran's elbow claim, the result would have been manifestly different. Further, development of the facts pertinent to the claim would have resulted in service connection because the evidence present in VA's 2009 decision granting service connection existed at the time of the Board's 1987 decision. In regard to the aforementioned contentions, the Board disagrees. First, in regard to the argument that the Board erred by failing to abide by the duty to assist, it is noted that the citations and case law provided to support this argument were issued subsequent to the Board decision in question. However, notwithstanding the timing of such and the fact that the VA does in fact have a duty to assist the claimant which also would have existed implicitly at the time of the May 28, 1987 Board decision, such decision does appear to have abided by the directives of such case law. The Veteran was allowed to provide evidence, which it is shown that he did by way of medical records, including service treatment records and post-service treatment records up through July 1986, and that he was even provided with a hearing before the Board on May 1986, at which he further advanced his contentions. There was no indication in the record at that time that the Veteran had identified or attempted to identify any evidence that was not made available to the Board in its review. In sum, the Veteran was afforded every opportunity to submit evidence and VA had complied with the duty to assist. It is additionally noted that 38 C.F.R. § 20.140 (d) gives examples of situations that are not CUE. In particular, CUE is not a failure to fulfill the duty to assist. Therefore, the alleged failure to assist the Veteran could not constitute CUE. Second, in regard to the argument that the Board failed to properly consider all of the evidence stemming from the Veteran's examinations and treatments and did not grant every benefit that could be supported in law, the Board finds that such findings are not supported by a review of the May 28, 1987 Board decision or the supporting evidence upon which it relied. The evidence listed by the Veteran's representative was in fact specifically considered in the Board decision. The point of divergence, however, appears to be in relation to how the Board interpreted such facts and not any actual misapplication or non-consideration of the facts, as they were known at the time. Additionally, 38 C.F.R. § 20.1403(d) provides that CUE is not a disagreement as to how the facts were weighed or evaluated. It appears that the Board did have all of the correct facts before it, but merely arrived at a different conclusion, as it gave greater weight to some evidence than others. As such, the representative's disagreement as to how the facts were weighed or evaluated is also found to not warrant consideration of any error within the context of the motion for CUE. Third, although the Veteran's representative argued that the Board did not sympathetically develop the Veteran's claim to the optimum, he does not provide any indication as to the types of further development that are actually lacking in this matter. This is another way of alleging that the Board had failed in its duty to assist the Veteran with development of his claims. As discussed earlier, such a failure cannot constitute CUE. Fourth, to the argument that the Board explained away all of the evidence of an elbow condition, the Board is unclear as to what makes this particular action an error. The Board has an obligation to provide reasons and bases supporting a decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), see also Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires that the Board address its reasons for rejecting evidence favorable to the Veteran). To the extent that the Board explained its decision to deny the Veteran's claims based upon its assessment of the evidence of record, as a review of the May 28, 1987 Board decision reveals, it would appear that the Board has in fact not committed an error, but rather fulfilled its duty under the law. Fifth, to the argument that the evidence of record showed that the Veteran's bilateral elbow condition was actually chronic, and not acute as found by the May 28, 1987 Board decision. This, again, is merely a disagreement as to how the facts were weighed or evaluated is also found to not warrant consideration of any error within the context of the motion for CUE. In addition, at the time of the May 1987 Board decision, VA rating authorities were permitted to rely on their own medical judgment to support their 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). The Board ultimately found that the Veteran's bilateral elbow condition did not represent a chronic disability as applied under existing law. 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 findings of the Board in its decision were justified in its assessment of the medical evidence of record indicating that the Veteran's condition did not represent a chronic disability. Sixth, in regard to the argument that further development of the facts pertinent to the claim would have resulted in service connection because the evidence present in VA's 2009 decision granting service connection existed at the time of the Board's May 28, 1987 decision, this is yet another way of saying that there was a failure in the duty to assist. No other errors have been specifically alleged. There is no showing of an undebatable or outcome determinative error in the May 28, 1987 Board decision. Thus, the Board finds there has been no showing of CUE in the May 28, 1987 Board decision and the determination is final. ORDER There being no showing of CUE in the May 28, 1987, Board decision; the motion is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs