Citation Nr: 1751261 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-16 467A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a June 1970 RO rating decision, which granted service connection for a right leg condition, but without any provision for compensation for a disability of the right knee. 2. Entitlement to a higher initial disability rating (or evaluation) for osteoarthritis of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which granted service connection for osteoarthritis, right knee, and assigned a 10 percent disability rating, effective March 27, 1996. Subsequently, in a December 2005 rating decision, the RO found CUE in the previous March 2004 rating decision, and assigned a new effective date of October 25, 1996 for the grant of service connection for osteoarthritis of the right knee. This appeal stems from the Veteran's disagreement with the effective date assigned for service connection for right knee osteoarthritis. Jurisdiction is currently with the RO in New York, New York. Several hearings have been held in this case; the first was a Central Office hearing held in November 2007 before the undersigned Veterans Law Judge (VLJ), during which the Veteran provided limited testimony on the earlier effective date claim, even though it was not yet formally on appeal to the Board. The Veteran also testified at an August 2009 Decision Review Officer (DRO) hearing. Thereafter, in November 2010, another Central Office hearing was held before the undersigned VLJ. Transcripts of these hearings are associated with the electronic claims file. In November 2010, at the most recent Board hearing, the Veteran provided additional evidence, comprised of lay statements and various medical journal articles, along with a waiver of initial RO consideration of the newly submitted evidence. See 38 C.F.R. §§ 20.800, 20.1304(a) (2017). In March 2008 and May 2011, the Board remanded the case for further development. In July 2014, the Board found that there was no CUE in the June 1970 rating decision, and granted an earlier effective date of February 23, 1995, for the award of service connection for a right knee disability. In November 2015, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision, which found that the Board failed to consider all favorable evidence in its decision in determining that there was no CUE in the 1970 rating decision; that portion of the July 2014 Board decision was vacated. The Secretary submitted a motion for reconsideration of the November 2015 Court Memorandum Decision, which was granted, and the Court issued a February 2016 Memorandum Decision which vacated the prior (November 2015) Memorandum Decision. In the February 2016 Memorandum Decision, the Court also found that the Board had failed to consider all favorable evidence in connection with the CUE claim, and the CUE issue was remanded to the Board for readjudication. In a July 2016 decision, the Board again denied CUE in the June 1970 rating decision. In a June 2017 Memorandum Decision, the Court vacated the July 2016 Board decision and remanded the matter for readjudication. The issue of a higher initial disability rating for osteoarthritis of the right knee is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's original claim was received in November 1969 and included a claim of service connection for a punji stake penetrating right leg injury. 2. A June 1970 rating decision granted service connection for a wound of the right leg with residuals of thrombophlebitis, and for other disabilities shown on the February 1970 VA examination, which did not include a right knee disability. 3. The June 1970 rating decision, to the extent it did not grant entitlement to service connection for a right knee disability, was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment. 4. The November 1969 claim of service connection for a right leg injury included a claim of service connection for a right knee disability. CONCLUSION OF LAW Clear and unmistakable error is shown in the June 1970 rating decision to the extent it did not grant service connection for a right knee disability. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 are not applicable to CUE motions. See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (2001)). In Livesay, the Court noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process. Because the Veteran is not pursuing a claim for benefits, but rather is collaterally attacking a prior final decision, the duties to notify and assist as set forth in the VCAA are not applicable. Livesay, 15 Vet. App. at 178-79. Legal Criteria and Analysis The Veteran seeks an effective date from November 1969, the date he filed the original claim for residuals of an in-service punji stake injury. He argues that there was CUE in the June 1970 rating decision because the evidence was sufficient in 1970 to grant service connection for a right knee disability. He maintains that the claim of service connection for a right knee disability was not addressed when discussing service connection for a right leg condition, and therefore, favorable evidence was not considered. The Board notes that a final and binding agency decision shall not be subject to revision on the same factual basis, except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105 and § 3.2600 (2017). The section 3.2600 exception pertains to situations when the claimant filed a timely notice of disagreement following the decision in question to initiate an appeal. This did not occur here, however, inasmuch as the Veteran did not appeal the June 1970 rating decision with a timely notice of disagreement. The section 3.105 exception allows for the revision of the decision in question on the grounds of CUE. According to 38 C.F.R. § 3.105(a), where the evidence establishes such error, the prior decision will be reversed or amended. A rating or other adjudicative decision that 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 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The Court has established a three-prong test defining CUE, which is as follows: (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 of the sort which, had it 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. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). "In order for there to be a valid claim of [CUE], ... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. Id.; Damrel, 6 Vet. App. at 245-246. CUE 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. Thus, 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, ipso facto, [CUE]." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The failure to fulfill the duty to assist also cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The record in the appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact. A finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The June 1970 rating decision, as explained, is a final and binding determination because, although the Veteran received proper notice of that decision, he did not perfect an appeal. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.1103 (2017). Regarding alleged error in the June 1970 decision, the Veteran states that, in 1969, he submitted a claim of service connection for a right leg disability. Specifically, he asserts that the June 1970 rating decision contains CUE for not adjudicating service connection for the current right knee disability. He asserts that, due to this error, he was not awarded service connection for osteoarthritis of the right knee at an earlier date. Service treatment records show that, in January 1969, the Veteran was treated for a penetrating wound to the right leg, caused by stepping onto a punji stick trap on January 4, 1969 near An Khe, Vietnam. In February 1969, the Veteran attended physical therapy for exercises of the right knee. This report shows that the examiner wrote "quads" in the report, which appears to relate to the knee exercises, since the quadriceps muscles are above the knee. The Veteran continued to receive in-service treatment for his right leg through March 1969. In the November 1969 Report of Medical History completed by the Veteran, he specifically denied having or ever having "'trick' or locked knee." He checked yes to having or ever having rheumatic fever, swollen or painful joints, mumps, dizziness or fainting spells, ear, nose or throat trouble, chronic or frequent colds, skin diseases, cramps in his legs, back trouble of any kind, foot trouble, car, train, sea, or air sickness, depression or excessive worry, and nervous trouble of any sort. In the physician's summary and elaboration of all pertinent data (the physician is asked to comment on all positive answers in items 20 through 38), he noted the scar on the right leg secondary to the punji stick and that there was no sequalae. The Veteran was discharged from service in November 1969. At that time, the Veteran requested service connection for "PUNGI STAKE - Penetrating Right leg." See VA Form 21-526. He also requested service connection for missing tooth, ring worm on hand and back, and stomach trouble. Id. A February 1970 VA examination report shows the Veteran complained that the right leg was bothering him. After examining the Veteran's right leg and noting scar, veins, and calf size, which was documented in the musculoskeletal portion of the examination, the examiner diagnosed the Veteran with a wound of the right leg, with residuals of thrombophlebitis of the right leg. The February 1970 neuropsychiatric examination shows that the Veteran reported he had swelling of the right leg from undue exercise or walking and long standing on his feet. The June 1970 rating decision granted service connection for wound, right leg, with residuals of thrombophlebitis (10 percent). Directly applying the Court's June 2017 Memorandum Decision and findings therein, when the Veteran filed for service connection for a right leg disability that existed from his calf to his thigh in November 1969, the evidence showed that he had painful and swollen joints and was referred for knee exercises by a physical therapist in February 1969. As such, the Board finds, consistent with the June 2017 Memorandum Decision, that the RO's failure to construe the Veteran's right leg claim as including a claim for the right knee constituted CUE in the June 1970 rating decision. Based on the finding of CUE in the June 1970 rating decision, the Board also implements the Court's instruction (in the June 2017 Memorandum Decision) to award an effective date of November 24, 1969, for the grant of service connection for a right knee disability. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (the Board is required to address the clear and specific instructions of a Court Order). ORDER The motion to reverse the June 1970 rating decision on the basis of CUE is granted, and the June 1970 rating decision's implicit denial of service connection for a right knee disability is reversed to a grant of the benefit sought. REMAND The Board also acknowledges the Court's instruction to the Board, in the June 2017 Memorandum Decision, to "determine the appropriate disability rating for the period prior to March 27, 1996." Here, the Board notes that an initial disability rating for the right knee disability has already been assigned at 20 percent from February 23, 1995, forward (which is not on appeal and not before the Board), and the appropriate period to assign an initial disability rating for the right knee disability is from November 24, 1969 to February 23, 1995. In this regard, however, the AOJ has not adjudicated (assigned) an initial rating for the right knee disability from November 24, 1969 to February 23, 1995 in the first instance. As such, the Board remands the issue below for initial adjudication by the AOJ and issuance of a Supplemental Statement of the Case (SSOC). The Board maintains jurisdiction of this issue because the June 2017 Memorandum Decision held such, which is why the Board is requesting that a Supplemental Statement of the Case be issued. Accordingly, the issue of a higher initial disability rating for osteoarthritis of the right knee is REMANDED for the following action: After implementing the Board's decision above and awarding the Veteran an effective date of November 24, 1969, for the award of service connection for a right knee disability based upon clear and unmistakable error, adjudicate (assign) the initial disability rating for right knee osteoarthritis from November 24, 1969 to February 23, 1995. Furnish the Veteran and the representative with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. Inform the Veteran that he should notify the RO if he is satisfied with the initial disability rating for right knee osteoarthritis from November 24, 1969 to February 23, 1995. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs