Citation Nr: 1706415 Decision Date: 03/02/17 Archive Date: 03/16/17 DOCKET NO. 17-06 502 ) DATE ) ) THE ISSUE Whether the October 28, 2008 Board of Veterans' Appeals (Board) decision finding that the moving party was not entitled to service connection for a low back disability should be revised or reversed on the grounds of clear and unmistakable error (CUE). (The issues of whether new and material evidence has been received to reopen service connection for a low back disability and service connection for sleep apnea and sinusitis will be the subject of a separate Board decision.) REPRESENTATION Moving party represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the moving party, had active service from January 1966 to October 1969. This matter is currently before the Board on the moving party's December 2016 motion for revision on the grounds of CUE of an October 28, 2008 Board decision that denied service connection for a low back disability. By way of history, the moving party filed a claim for service connection for a low back disability on May 18, 2005. In a subsequent August 2005 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, denied service connection for a back disorder. The moving party perfected an appeal to the denial, and in an October 2008 decision, the Board denied service connection for a low back disability. The denial was not appealed United States Court of Appeals for Veterans Claims (Court). In December 2016, the moving party filed a motion to advance this matter on the docket (AOD). Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2016). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. An appeal may also be advanced if the case involves interpretation of a question of law of widespread application affecting other claims, although this is extremely rare. Here, the Board finds sufficient cause to grant the AOD motion due to the risk of administrative error resulting in a significant delay. Specifically, prior to filing the CUE motion at issue in the instant decision, the moving party filed a claim to reopen the previously denied issue of service connection for a low back disability in August 2009. The request to reopen was denied in an October 2009 rating decision. The moving party subsequently perfected an appeal, and the issue of whether new and material evidence has been received to reopen service connection for a low back disability is now properly before the Board. The new and material evidence issue has been on appeal for over seven years, and it should not be decided until the instant Board CUE motion has been resolved. As such, granting of the AOD motion is necessary to ensure the issues can be addressed together at this time and to avoid significant delay. FINDINGS OF FACT 1. An October 28, 2008 Board decision denied service connection for a low back disability. The moving party was provided with a copy of the decision and did not appeal the Board decision to the Court. 2. The October 28, 2008 Board decision was not based on all the evidence then of record and contained legal error in the assignment of probative value to evidence and failing to apply relevant law at the time so as to not constitute a reasonable exercise of rating judgment. 3. But for the factual and legal error in the October 28, 2008 Board decision, the outcome would have been manifestly different and service connection for a low back disability of degenerative joint disease (DJD) of the lumbar spine would have been granted, effective from May 18, 2005. CONCLUSION OF LAW The October 28, 2008 Board decision denying service connection for a low back disability was clearly and unmistakably erroneous, and is revised to grant service connection from May 18, 2005, for DJD of the lumbar spine. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. §§ 20.1400-1411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). The Court has directed that the VCAA does not apply to motions for revision or reversal based on CUE. Hines v. Principi, 18 Vet. App. 227, 235 (2004); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). See also 38 C.F.R. § 20.1411 (obligations imposed by other statutes listed are not applicable to motions to revise or reverse Board decisions). The Court has clarified that CUE motions are not conventional appeals, but rather are requests for revision of previous decisions. A motion based on 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. Moreover, that litigant has the burden of establishing CUE on the basis of the evidence then of record. Livesay, 15 Vet. App. at 178-179. Further, as the Board finds CUE in the October 28, 2008 Board decision denying service connection for a low back disability, any discussion of VA's duty to notify and assist is rendered moot. Whether Clear and Unmistakable Error was Present in the October 28, 2008 Board Decision A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C.A. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice. 38 C.F.R. Part 20 (2016). Clear and unmistakable error 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. 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. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been 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. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. CUE is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting "manifestly changed the outcome" language in Russell, supra). Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C.A. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In the present case, the moving party alleges CUE in an October 28, 2008 Board decision that denied service connection for a low back disability. The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. Specifically, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). DJD, as arthritis, is a chronic disease under 38 C.F.R. § 3.309(a) (2016). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) (2016) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue of service connection for a low back disability when DJD is diagnosed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 U.S.C.A. § 1112 (West 2014). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In the December 2016 CUE motion, the moving party argues that the Board, in its October 28, 2008 decision, made the following factual and legal errors: 1) failing to recognize that the moving party had been diagnosed with DJD (arthritis) of the lumbar spine during the relevant period on appeal; 2) failing to address the moving party's lay statements and testimony concerning continuous post-service symptoms of DJD of the lumbar spine (specifically, failing to perform a credibility analysis and incorrectly finding that the moving party was not competent to report such continuous symptoms); and 3) failing to apply/consider presumptive service connection provisions at 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.303(b). The moving party argues that, had such factual and legal errors not been committed, the October 28, 2008 Board decision manifestly would have granted presumptive service connection under 38 U.S.C.A. § 1112 and 38 CFR § 3.303(b) for the "chronic disease" of arthritis (DJD) based on the unrebutted evidence of continuous post-service symptoms of DJD/arthritis of the lumbar spine. As discussed in the October 28, 2008 Board decision, the moving party had advanced, including in testimony at a July 2007 Travel Board hearing, injuring the low back during service when lifting air conditioners weighing hundreds of pounds. The service treatment (medical) records show that the moving party sustained musculoskeletal strain of the lumbar spine when lifting air conditioning units in September 1967. Turning to the moving party's first argument in support of the CUE motion, while the Board, in the October 2008 decision, did acknowledge that the moving party had been diagnosed with degenerative disc disease (DDD) of the lumbar spine at an April 2008 VA general medical examination, the Board failed to recognize favorable competent medical and lay evidence in the record that, in addition to DDD, the moving party had been diagnosed with DJD of the lumbar spine, which is arthritis, including based on X-ray findings. In failing to discuss such lay and medical evidence of arthritis that was already of record in October 2008, the Board decision committed factual error by not having the correct facts before it (of a current diagnosis of arthritis), and committed legal error by failing to even consider or weigh this favorable evidence of record that showed the presence of arthritis of the low back. In the December 2016 CUE motion, the moving party cites to multiple documents of record at the time of the October 2008 Board decision reflecting that the moving party had a then current diagnosis of DJD of the lumbar spine. Such evidence includes X-ray findings from an April 2005 VA radiology report diagnosing facet joint changes at L4-L5, multiple private assessments/diagnoses of lumbar spine arthritis from April 1987 to February 2005, and the moving party's own statement in January 2005 to VA that outside X-rays showed osteoarthritis throughout the spine. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis). At no point during the October 2008 Board decision did the Board recognize the diagnosis of DJD (arthritis) of the lumbar spine. The only diagnosis considered by the Board was that of DDD of the lumbar spine. The Board decision, from the outset, limited the issue to service connection for DDD only, rather than addressing the broader issue of service connection for a low back disability. This limitation of the issue reflects how the remainder of the Board decision precluded evidence and analysis of the diagnosed lumbar spine arthritis (DJD). For these reasons, the Board now finds that, at the time of the October 28, 2008 decision, the Board erred in failing to recognize the fact of the moving party's then current diagnosis of DJD of the lumbar spine. As to the moving party's second argument, the Board finds that the lay and medical evidence of record at the time of the October 2008 Board decision clearly and unmistakably showed continuous post-service symptoms of lumbar spine arthritis. Such evidence included the Veteran's lay statements of continuous low back pain symptoms, multiple complaints or histories of low back pain made during treatment over many years (dating back to the late 1980s), treatment report notations or assessments of polyarthralgias, and even diagnoses of arthritis/DJD based on the history of continuous low back pain at a February 2005 MDSI evaluation. Review of the October 28, 2008 Board decision reflects that the entire discussion of the evidence regarding continuous post-service symptoms of low back arthritis consists of one sentence on page 6 of the decision: "The veteran asserts that he has continuously suffered from his low back disability since service." The Board agrees with the moving party that one sentence report of the Veteran's "contentions" is incomplete, and reflects the Board decision's failure to recognize the significant fact of continuous post-service back symptoms. The Board decision failed to report or weigh other significant facts such as treatment, post-service continuous symptoms, post-service diagnoses and treatment of back disability, clinical findings of arthritis, and clinical findings of limitation of function associated with back disability. The Board's erroneous insistence, referenced above, that there be "medical" evidence to make an association between the Veteran's diagnosed current low back disability and the in-service strain injury also reflects that the Board decision never afforded any probative value to the Veteran's lay assertions of continuous post-service symptoms that, coupled with the diagnosis of arthritis, would have required the Board to grant presumptive service connection for arthritis of the lumbar spine, which would have mooted the requirement for "medical" evidence of direct nexus to service. For these reasons, the Board finds that, at the time of the October 28, 2008 decision, the Board erred by failing to adequately address the moving party's lay statements and testimony concerning continuous post-service symptoms of DJD of the lumbar spine, along with the supporting medical evidence of record. This shows that the Board did not have the correct facts before it at the time of the October 2008 service connection denial. See Damrel, 6 Vet. App. at 245. Further, as touched upon above, in the October 28, 2008 decision, the Board found the moving party to not be competent to advance continuous symptoms of arthritis/DJD since service separation. This was a legally erroneous finding by the Board, as a veteran is competent to report continuous low back symptoms experienced at any time, including since service. In other words, it is a question of credibility, not competence. See Jandreau, 492 F.3d 1372 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The law at the time of the October 28, 2008 Board decision provided that a lay person is always competent to report symptoms that he or she experiences at any time. Specifically as pertains to evidence of continuous symptomatology, the presumptive service connection regulation at 38 C.F.R. § 3.307(b) specifically provides that the factual basis for establishing a chronic disease "may be established by medical evidence, competent lay evidence or both" (emphasis added). The Board's citation to Espiritu to find the moving party lacked competency was legally incorrect as it commits the very same legal errors that the Court identified in the precedential Washington decision. See Washington, 19 Vet. App. at 368 ("Although the Board's determination that [the veteran] was incompetent to render a medical diagnosis is an accurate statement of the law, the Board mischaracterized the purpose for which the appellant's testimony was introduced. [citation to Espiritu] The appellant neither testified about the diagnosis nor the etiology of his current hip disability. Rather, he was testifying to factual matters of which he had first-hand knowledge: Experiencing pain . . ."). Finally, the Board also agrees with the moving party's third argument that the Board erred in the October 28, 2008 decision when it failed to apply the arthritis chronic disease presumption for service connection based on continuous post-service symptoms. See 38 C.F.R. § 1112; 38 C.F.R. § 3.303(b). As discussed above, in the October 28, 2008 decision, the Board never found that the moving party had been diagnosed with arthritis of the lumbar spine (or any other presumptive disease), and review of the decision reflects that no analysis under 38 C.F.R. § 3.303(b) was performed by the Board. In other words, because the Board was unaware that the record showed the moving party had been diagnosed with arthritis (DJD) at the time of the October 2008 Board decision, including based on X-ray findings that supported the diagnosis and the moving party's reported complaints of joint pain (arthralgia), the Board failed to apply the "chronic disease" presumptions to the arthritis of the lumbar spine. Per the law in effect at the time of the October 2008 decision, discussed above, once the evidence of record established a current diagnosis of arthritis and credible, unrebutted evidence of continuous symptoms of arthritis since service, with no intercurrent cause, the Board should have granted presumptive service connection for arthritis of the lumbar spine. The Board's analysis should have ended there with a grant of presumptive service connection for arthritis under 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.303(b). After considering the moving party's contentions and the evidence of record at the time of the October 28, 2008 Board decision, the Board finds clear error in the Board's October 28, 2008 service connection denial rationale, consideration of the facts, and application of the law. As discussed above, the correct facts contained in, or constructively contained in, the record were not before the adjudicator as the Board failed to note and address the moving party's then current diagnosis of DJD of the lumbar spine. Further, the statutory and regulatory provisions extant at the time were incorrectly applied as the Board found the moving party's unrebutted lay statements to not be competent (rather than credible) and failed to apply the relevant presumptive service connection law pursuant to 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.303(b). Additionally, the October 2008 Board decision was legally erroneous as it relied only on a VA examiner's nexus opinion (and that only on direct service connection under 38 C.F.R. § 3.303(d)) in deciding this case. The Board did not report and/or consider all the relevant facts in this case, and did not properly weigh the relevant facts of continuous post-service reports of low back pain including during post-service treatment, post-service clinical findings suggesting low back functional limitations, and diagnosis of arthritis and findings suggestive of arthritis. Rather, the Board relied entirely on a negative VA examiner's opinion and, by doing so, abdicated its role as fact finder. See 38 U.S.C.A. § 7104 (charging the Board with finding facts). The Board should have weighed all the evidence and found the facts in this case. Instead, the October 2008 Board decision allowed the VA examiner's opinion to decide the case by simply and uncritically adopting the VA examiner's direct service connection nexus opinion. Had the factual and legal errors discussed above not been committed, the October 28, 2008 Board decision manifestly would have granted presumptive service connection under 38 U.S.C.A. § 1112 and 38 CFR § 3.303(b) for the "chronic disease" of arthritis (DJD) of the lumbar spine based on the unrebutted finding of continuous post-service symptoms of arthritis and diagnoses of arthritis already in the record. The Board finds that the October 28, 2008 Board decision is clearly and unmistakably erroneous; therefore, the October 28, 2008 Board decision should be revised, resulting in a grant of service connection for DJD (arthritis) of the lumbar spine, effective from May 18, 2005, the date of receipt of the Veteran's claim for service connection. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. ORDER The October 28, 2008 Board decision, having been found to be clearly and unmistakably erroneous in denying service connection for a low back disability of DJD of the lumbar spine, is revised to reflect a grant of service connection for DJD of the lumbar spine from May 18, 2005, the date of claim. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs