Citation Nr: 1803193	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-08 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Whether a May 1986 rating decision reducing the evaluation for a service-connected left knee disorder from 10 percent to noncompensable should be revised or reversed on the basis of clear and unmistakable error (CUE).

2. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder.

3. Entitlement to an evaluation in excess of 10 percent for a left knee disorder. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1966 to July 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
 
In April 2016, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
 
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 

The issues of entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder and entitlement to an evaluation in excess of 10 percent for a left knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The May 1986 rating reducing the evaluation for a service-connected left knee disorder from 10 percent to noncompensable was adequately supported by the evidence then of record, considered the correct facts as they then existed, correctly applied statutory or regulatory provisions extant at that time, and did not contain an undebatable or egregious error of fact or law that was outcome determinative.


CONCLUSION OF LAW

There is no CUE in the May 1986 rating decision reducing the evaluation for a service-connected left knee disorder from 10 percent to noncompensable. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.105, 3.303, 4.71a, Diagnostic Code 5257 (1986, 2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

In certain instances, VA has duties to notify and assist a Veteran in substantiating a claim. More specifically, upon receipt of a complete or substantially complete application, VA must inform him of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that he is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see also 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159 (b).

But with respect to the Veteran's contentions concerning CUE in the May 1986 rating decision at issue, in Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court/CAVC) held in relevant part that "there is nothing in the text or the legislative history of [the Veterans Claims Assistance Act (VCAA)] to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions." See Livesay, 15 Vet. App. at 179. It was observed that CUE claims are not conventional appeals, but rather are requests for revision 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 such error is not pursuing a claim for benefits, but rather is collaterally attacking a final and binding decision. Thus, a "claimant," as defined by 38 U.S.C. § 5100 (2012), 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 CUE motion currently being considered in this appeal. Livesay held that the VCAA does not apply to CUE motions involving prior Board decisions, but Baldwin v. Principi, 15 Vet. App. 302 (2001), held that the VCAA also does not apply to CUE motions, as here, collaterally attacking prior RO decisions. See also Parker v. Principi, 15 Vet. App. 407 (2002).

Analysis

Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2017). If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a) (2017).

To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

CUE is a very specific and rare 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. 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

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

The Veteran contends that a May 1986 rating decision contains CUE in the reduction and assignment of a noncompensable evaluation for a service-connected left knee disorder (previously rated under Diagnostic Code 5257 as internal derangement, left knee). That rating decision found that his service-connected left knee disorder had improved and most nearly approximated the criteria for the lesser noncompensable evaluation, and indicated the reduction in rating would occur prospectively as of August 1, 1986. The Board observes that the Veteran's evaluation for a left knee disorder was later increased to10 percent disabling, effective December 29, 2009, and a claim for an increased evaluation is addressed below in the Remand section.

After reviewing the record from that point in time, the Board disagrees and finds the reduction and subsequent noncompensable evaluation for the Veteran's left knee disorder in the May 1986 rating decision was not CUE. The correct facts were before the May 1986 adjudicators, including both medical and lay evidence. In other words, the RO correctly applied the statutory and regulatory provisions in effect at the time and that decision does not contain an undebatable error that was outcome determinative.

The Veteran and his representative have attacked the May 1986 rating decision and reduction as CUE, primarily due to the results of a single March 1986 VA examination and some medical evidence submitted around that time. The Board notes that they have made no further argument as to CUE, including whether the Veteran received the proper notice regarding the reduction and further discussion of the matter will pertain to the regulations, medical evidence, and facts of record at the time of the May 1986 rating decision. 

A VA examination was conducted in March 1986, which showed left knee flexion was 140 degrees and extension was 0 degrees with no crepitations. No lateral instability or subluxation was noted and McMurray testing was negative. X-ray testing revealed no abnormalities.

Additional medical evidence was received in July 1986 from Dr. Horvath which indicated that the Veteran had swelling and pain in the lateral aspect of his left leg which was due to either cystic condition or herniation of one of the peroneus muscles.

A subsequent August 1986 rating decision indicated that a compensable evaluation
was not shown based on the evidence received from Dr. Horvath.

A timely notice of disagreement was received in October 1986 and a Statement of the Case was later issued in December 1986. The Veteran therefore had until February 1987 to submit a substantive appeal. However, he did not perfect an appeal within the appropriate timeframe and the decision became final. 

At the time of the May 1986 rating decision, there was no mention of instability or subluxation during the routine March 1986 VA examination. Further, while Dr. Horvath indicated that the Veteran suffered from left knee pain, he stated that it was due a cystic condition or muscle injury. That being said, the rating criteria found in Diagnostic Code 5257 were the same then as they are currently. Namely, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1986, 2017).

The Board finds that the medical evidence was considered by the VA adjudicators in the May 1986 and subsequent August 1986 rating decision. Thus, the RO considered the correct facts. The Board also finds that rating decisions involved correct application of the law then in effect. The Veteran's 10 percent evaluation and reduction to noncompensable was assigned under Diagnostic Code 5257, pertaining to internal derangement, left knee. Thus, it appears that the previous adjudicators found the VA examination report to be more probative and persuasive than the conclusory statement from Dr. Horvath. In any event, the May 1986 rating decision was clearly based on the correct facts as they were known at the time and the Veteran's disagreement as to how the facts were weighed cannot constitute a valid claim of CUE. See Luallen v. Brown, 8 Vet. App. 92, 95 (1995).

Although the Veteran and his representative have not directly raised it, the Board notes that 38 C.F.R. § 3.344 (2017) pertains to whether the condition is a disease subject to temporary or episodic improvement. According to the regulation at the time, "[r]atings on account of diseases subject to temporary or episodic improvement...will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants a conclusion that sustained improvement has been demonstrated." 38 C.F.R. § 3.344(a). The Board finds that the Veteran's left knee disorder is not a "disease subject to temporary or episodic improvement" and the reduction of the assigned rating based on the medical evidence of record was not CUE. The regulation provides several examples of diseases subject to temporary improvement including manic depressive or other psychotic reaction, epilepsy, heart disease, bronchial asthma, ulcers, and skin diseases. None of these examples are conditions that affect the spine, joints, or are otherwise similar to the service-connected left knee disorder. Additionally, the Veteran's left knee disorder is also clearly not a disease. Rather, it is an acquired disability of the knee that was developed as a result of injury and prior trauma. While the disability can become aggravated or exacerbated due to certain physical activities, it is "more or less stationary in nature." See VAOPGCPREC 82-90. The Board therefore finds that his service-connected left knee disorder is not a disease and the reduction in the disability rating from 10 percent to noncompensable based primarily on the single March 1986 examination and medical evidence was not CUE.

Given the law in effect during the May 1986 rating decision, there is no showing that the RO committed CUE in the reduction of the Veteran's left knee disorder from 10 percent disabling to noncompensable. The correct facts were before the adjudicators and the law was correctly applied. Therefore, this claim of CUE in the May 1986 rating decision must fail.


ORDER

The claim of CUE in the May 1986 rating decision reducing the evaluation for a service-connected left knee disorder from 10 percent to noncompensable is denied.


REMAND

Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims. Specifically, remand is required to provide a new VA examination and opinion and to retrieve any outstanding treatment records.

The Veteran seeks entitlement to service connection for a right knee disorder. The Board notes that it has since expanded the scope of his appeal to include a claim for secondary service connection, in part on the basis of arguments advanced. The Veteran also seeks entitlement to an evaluation in excess of 10 percent for a left knee disorder.

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b).

The Veteran's most recent and pertinent VA examinations for his claimed knee disorders took place in September 2010 and October 2011. According to the examination reports, he received diagnoses of degenerative joint disease, bilaterally. A negative etiological opinion was provided for his claimed right knee disorder, but secondary service connection was not addressed. The Veteran's 10 percent evaluation for a left knee disorder was continued as a result of the October 2011 examination. 

In April 2016, the Veteran testified about his claimed disabilities. The Veteran stated that he experiences frequent pain, instability, buckling, and numbness in both of his knees. He and his representative indicated that a new VA examination is warranted due to the passage of time since his previous examination. He and his representative also raised the issue of secondary service connection, as the Veteran suggested that his claimed right knee disorder is aggravated by his service-connected left knee disorder and that he often uses his right knee to compensate for the pain and lack of motion he experiences from his service-connected left knee disorder.

The Board finds that a new VA examination is thereby necessary. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity).

VA should also obtain all relevant VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). According to his file, the Veteran has received VA treatment for his conditions, but there are no VA treatment records after approximately 2014. Therefore, the AOJ should obtain any additional relevant and appropriate VA treatment records.


Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain any outstanding VA treatment records. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  

2. Schedule the Veteran for VA knee examination with a VA examiner of appropriate expertise to determine the nature and etiology of the Veteran's claimed right knee disorder, as well as the current manifestations and severity of his service-connected left knee disorder. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. 

(a) If and only if the examiner finds that a right knee disorder is present, or was present at any time during the appeal period though it has since resolved, the examiner should then opine whether the Veteran's right knee disorder at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service.

(b) If such is determined to not be related to military service, the examiner should then opine whether any right knee disorder is caused by his service-connected disabilities, including a left knee disorder.

(c) The examiner should then opine whether any right knee disorder is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected disabilities, including a left knee disorder.

(d) The VA examiner must also VA must also evaluate the current manifestations and severity of the Veteran's service-connected left knee disorder. The VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of the right knee and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also specifically comment on the Veteran's lay statements, as applicable. Evidence of locking or instability should be specifically set out if identified.

The examiner should provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also address and reconcile any previous examination reports, as well as any other pertinent evidence of record, as necessary.

3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. 

4. After completing any additional development deemed necessary, readjudicate the claims. If any benefit requested on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order.  

The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs