Citation Nr: 1804208 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-20 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether clear and unmistakable error was committed in a June 25, 1984 Board decision denying a claim of entitlement to service connection for retinitis pigmentosa. REPRESENTATION Veteran represented by: Theodore Jarvi, Attorney ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1964 to July 1964. This matter comes before the Board from a June 2013 motion to revise or reverse on the basis of clear and unmistakable error in a June 25, 1984 Board decision that denied entitlement to service connection for retinitis pigmentosa. FINDING OF FACT The June 25, 1984 decision that denied entitlement to service connection for retinitis pigmentosa contained an undebatable, outcome-determinative legal error due to a misapplication of the presumption of soundness. CONCLUSION OF LAW Clear and unmistakable error was made in the June 25, 1984 Board decision that denied entitlement to service connection for retinitis pigmentosa, and is to be revised to grant service connection for retinitis pigmentosa. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 3.105, 20.1400, 20.1403 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With regards to claims alleging clear and unmistakable error, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable. An allegation of clear and unmistakable error does not actually represent a "claim" but rather is a collateral attack on a final decision. See Livesay v. Principi, 15 Vet. App. 165 (2001) (an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process."). Therefore, the provisions of the VCAA, and its implementing regulations, are not applicable to the adjudication of the clear and unmistakable error issue. Procedural Background To provide overall context, the Board finds that a recitation of the relevant procedural history with respect to this motion is helpful. In July 1964, the Veteran submitted her original claim of entitlement to service connection for an eye condition, diagnosed as retinitis pigmentosa. This claim was denied in a final November 1965 Board decision. In October 1978, the Veteran submitted a claim to reopen the issue of entitlement to service connection for an "eye condition." A final November 1978 rating decision denied reopening the Veteran's claim. In June 1983, the Veteran again submitted a claim to reopen the issue of entitlement to service connection for an "eye condition," which was denied in a June 1983 rating decision. Thereafter, the Veteran perfected an appeal of this decision to the Board. In a June 25, 1984 decision, the Board ultimately found that "[t]he additional evidence submitted since the [previous denials] does not significantly alter the factual basis upon which [those decisions] were predicated." This Board decision is final. In April 2009, the Veteran submitted another claim to reopen the issue of entitlement to service connection for retinitis pigmentosa, which was denied in a December 2009 rating decision. In an October 2010 rating decision, the Veteran's claim was reopened, but, was again denied on the merits; the Veteran then perfected an appeal. In a February 2012 decision, the Board re-captioned the Veteran's claim as one of entitlement to service connection for visual impairment, previously diagnosed as retinitis pigmentosa. The Board then determined that the Veteran had submitted new and material evidence sufficient to reopen the service connection claim. Ultimately, the Board was unable to make a determination that "clearly and unmistakably" the Veteran's retinitis pigmentosa preexisted service and was not aggravated by service. Consequently, the Board found that the presumption of soundness was not rebutted and, thus, the Veteran's visual impairment was incurred during her active duty. In other words, the Board granted entitlement to service connection for the Veteran's visual impairment, previously diagnosed as retinitis pigmentosa. In June 2013, the Veteran submitted a motion to revise the June 25, 1984 Board decision on the basis of clear and unmistakable error. The Veteran asserts that the Board's June 25, 1984 analysis contains clear and unmistakable error because it (1) characterized her retinitis pigmentosa as a congenital or developmental defect instead of a disease; (2) failed to or incorrectly applied the presumption of soundness; (3) failed to or incorrectly applied the presumption of aggravation; and (4) incorrectly applied the preponderance of the evidence evidentiary standard, with the corresponding benefit of the doubt doctrine. In an April 2015 decision, the Board found that there was no clear and unmistakable error in the June 25, 1984 Board decision. The Board initially determined that, as to the Veteran's first allegation, the June 25, 1984 Board decision did not characterize the Veteran's retinitis pigmentosa as a congenital or developmental defect or disease. Rather, this potential question was merely acknowledged, but ultimately found to be irrelevant by the Board. Thus, the April 2015 Board decision found that no clear and unmistakable error was committed in the June 25, 1984 decision by characterizing her retinitis pigmentosa as a congenital or developmental defect. Turning to whether the presumption of soundness had been applied or was applied incorrectly as a basis for clear and mistakable error in the June 25, 1984, the April 2015 Board decision determined that the presumption of soundness was for application in the June 25, 1984 decision only if the merits of the Veteran's claim of entitlement to service connection for retinitis pigmentosa were at issue. However, the Board determined that the June 25, 1984 Board decision had declined to reopen the claim for service connection for retinitis pigmentosa, because the new evidence failed to establish a new factual basis for the grant of service connection, and thus did not address the claim on its merits. Therefore, the April 2015 Board decision found that no clear and unmistakable error was committed in the June 25, 1984 decision by not applying or incorrectly applying the presumption of soundness. Finally, the Board addressed whether clear and mistakable error was committed by not applying or incorrectly applying the preponderance of the evidence evidentiary standard with the corresponding benefit of the doubt doctrine. The April 2015 Board decision explained that "the claim at issue therein concerned whether the Veteran had submitted evidence establishing a new factual basis and/or new and material evidence since the prior final denials." Finding that under those circumstances, the correct standard is a preponderance of the evidence, with application of the benefit of the doubt doctrine, the April 2015 Board decision found that the June 25, 1984 Board decision did not commit clear and unmistakable error in not applying the clear and unmistakable evidence standard. The April 2015 Board decision was appealed to the U.S. Court of Veterans Claims (Court). In a March 2017 memorandum decision, the Court affirmed in part and set aside in part the Board's April 2015 decision and remanded the matter of three theories of clear and unmistakable error for further proceedings. Initially, the Court found that the April 2015 Board decision erroneously concluded that its clear and unmistakable error analysis was based on whether the service connection claim had been reopened or not. Citing relevant case law, the Court explained as follows: For the purpose of deciding whether there was [clear and unmistakable error] in a decision declining to award service connection on a claim to reopen, however, it does not matter whether the decision "was or was not a merits adjudication because the disposition of the [clear and unmistakable error] claim would ultimately turn on the same question." Crippen [v. Brown, 9 Vet. App. 412 (1996).] In either case, the claimant must ultimately establish that the outcome on the merits "would have 'manifestly' been changed." Id. (citing Mason (Sangernetta) v. Brown, 8 Vet. App. 44, 53 (1995)) ("[I]f an RO [or Board] decision, assailed as [clear and unmistakable error], had undebatably erred in denying the reopening of a previously and finally disallowed claim, the Board would have to decide whether, had the error been not been made, the outcome after reopening-that is, on the merits-would have 'manifestly' been changed."). The Court also addressed the April 2015 Board decision's conclusion that the June 25, 1984 Board decision had declined to reopen the Veteran's service connection for retinitis pigmentosa, and thus the presumption of soundness was not for application. According to the April 2015 Board decision, the June 25, 1984 Board decision had declined to reopen the service connection claim, because the new and material evidence did not establish a new factual basis for granting service connection. However, the Court explained, after reviewing the applicable statutory and regulatory language (see 38 U.S.C. § 4004(b) (1983) and 38 C.F.R. § 19.194 (1983), that "consideration of whether a new factual basis had been established should have taken place only after evidence is judged new and material." Summarizing the evidence presented to the Board prior to the June 25, 1984 Board decision (treatises, lay statements, and a physician statement), the Court found that "all of this evidence related to an unestablished fact: the occurrence of an event or disease in service"; thus, it was only reasonable to conclude that new and material evidence had been submitted by the Veteran. On that basis, the Court concluded that "it would have been undebatable error for the 1984 Board to decline reopening the claim. It follows that the presumption of soundness was for application to [Veteran's] claim." Notably, the Court pointed out that the February 2012 Board decision, which ultimately granted service connection for visual impairment, found that the June 1984 Board decision had reopened the Veteran's claim for service connection, and denied the claim on its merits. In discussing the Veteran's theories of clear and unmistakable error, the Court affirmed the April 2015 Board's determination that the June 25, 1984 Board decision did not commit clear and unmistakable error, because it had not characterized the Veteran's condition as a congenital or development defect. On remand, the Court directed the Board to address the Veteran's other three theories of clear and unmistakable error in the June 25, 1984 Board decision: (1) incorrect application of the presumption of soundness; (2) incorrect application of the presumption of aggravation; and (3) incorrect application of the standard of proof to its analysis of the presumption of soundness. Clear and Unmistakable Error A final Board decision may be revised or reversed on the grounds of clear and unmistakable error by the Board on its own motion or upon request of a moving party at any time after the decision is made. 38 U.S.C. §§ 5109A, 7111(a), (c) (2012). Motions for review of prior Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to the Board's Rules of Practice codified at 38 C.F.R. §§ 20.1400-1411 (2017). The Board has original jurisdiction to consider motions for revision of prior Board decisions. The motion is not an appeal; therefore, it is not subject to the provisions of Part 19 or Part 20 that relate to the processing and disposition of appeals. See 38 C.F.R. §§ 20.1402, 20.1411. There is a three part test for clear and unmistakable error: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of clear and unmistakable error as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision). The benefit of the doubt provisions of 38 U.S.C. § 5107(b) are inapplicable in clear and unmistakable error motions. 38 C.F.R. § 20.1411(a). 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. An error cannot be clear and unmistakable error unless it is absolutely clear that a different result would have ensued, but for the error. 38 U.S.C. § 7111(e). Evidence The Veteran entered service with corrected distant vision in the right eye of 20/30 and in the left eye of 20/40. Her eye clinical evaluation results were otherwise normal. In an associated report of medical history, the examiner noted that the Veteran had worn glasses for 13 years for myopia. She was found fit for military service. See January 1964 enlistment examination and report of medical history. According to a July 1964 narrative summary, following completion of her basic training in June 1964, the Veteran sought treatment at an eye clinic with a noted history of having difficulty driving at night for the past four years, and difficulty walking at night for a longer period of time and that these conditions had been becoming worse. The glasses that she had been provided at age 13 for myopia were found to be non-contributory to her present illness. An objective evaluation found that the Veteran's eyes showed severe bilateral retinitis pigmentosa manifested by attention of arterioles and numerous large, heavy, lace-like pigment deposits. A July 1964 Medical Board Proceedings form noted that the Veteran was medically unfit from further military service and had "atrophy and pigmentation of retina causing progressive diminution of vision." The diagnosis of retinitis pigmentosa was found to be a disqualifying condition for enlistment that was not in the line of duty, had existed prior to service and was not aggravated by service. Upon being notified of her condition, the Veteran signed an application for discharge. A March 1965 letter from her private physician, Dr. C.E., noted that his records showed that in November 1961, the Veteran's vision was 20/30+ in the right eye and 20/30+ in the left eye. Noting that her prescription was about the same, Dr. C.E. stated that the Veteran's "visual acuity as well as fields of vision, have diminished, due to pigment deposits on the retina (retinitis pigmentosa)." In a May 1965 letter from Dr. M.R., he noted that the Veteran had been seen by him on two prior occasions in February 1959 and September 1960. During those examinations, no evidence of retinitis pigmentosa was seen. At more recent examinations in April 1965 and May 1965, Dr. M.R. indicated that the Veteran had "advanced retinitis pigmentosa with fields constricted to approximately 20 degrees with 20/330 white test target in the left eye, and to between 20 and 35 degrees in the right eye." At an April 1970 VA examination, the Veteran was diagnosed with staphylococcal blepharitis and retinitis pigmentosa bilaterally. March 1983 statements submitted by the Veteran's mother and brother attested that the Veteran did not show any symptoms of eye problems, other than myopia and multiple eyelid infections, or have a diagnosis of any retinal disease prior to service. In a November 1983 letter, Dr. T.P. explained that the Veteran had a condition affecting her eyes which clinically appeared to be retinitis pigmentosa or a condition with a similar clinical appearance. He noted that he had examined the Veteran's two children and her mother, and none of them had retinitis pigmentosa. An electroretinogram performed on both of her children's eyes showed that they were normal. Dr. T.P. found that it was impossible to say whether her condition was retinitis pigmentosa, or a similar condition. At a December 1983 Board hearing, the Veteran testified that other than nearsightedness (for which she wore glasses) and eyelid infections, she was not aware that she had any other eye problems, prior to being diagnosed with retinitis pigmentosa five months after she had completed basic training. She indicated that she first noticed problems during service, while in clerical school, because she said that it seemed like her typing speed had decreased. That led her to seek treatment at the eye clinic where she learned of her retinitis pigmentosa diagnosis. Analysis At the time of the June 25, 1984 Board decision, applicable VA law provided that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C. § 310 (1983) [now codified at 38 U.S.C. § 1110]. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 311 (1983) [now codified at 38 U.S.C. § 1111]. The applicable VA regulation that interpreted 38 U.S.C. § 311 provided that the veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 C.F.R. § 3.304(b) (1983). In contrast to the statute it was interpreting (38 U.S.C. § 311), there was no specific mention in this regulation that, to rebut the presumption of soundness, clear and unmistakable evidence of no aggravation was also necessary. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 353 (1983) [now codified at 38 U.S.C. § 1153]; 38 C.F.R. § 3.306 (1983). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. For purposes of clarity, the Board cites, as highlighted below, to the pertinent language in the June 25, 1984 decision at issue, which analyzed the merits of Veteran's service connection claim for retinitis pigmentosa: [W]hether the veteran's retinitis pigmentosa is developmental or acquired is not critical, as it is clearly and unmistakably shown to have existed prior to service. In this regard, while the veteran's recent statements and testimony are to the effect that she had no manifestations of retinitis pigmentosa prior to entry into service, these are not persuasive as service medical records reveal that a medical history furnished by the veteran in service for treatment purposes clearly and unmistakably shows symptoms characteristic of retinitis pigmentosa were present for a significant period of time prior to the veteran's entry into service. Similarly, service medical records do not indicate that there was an ascertainable degree in the underlying pathology of her retinitis pigmentosa, especially in view of the veteran's brief period of service. Upon review of the evidence of record and the law in effect in June 1984, the Board finds that the Board decision that denied service connection for retinitis pigmentosa contains clear and unmistakable error. Specifically, the Board incorrectly applied the statutory law pertaining to the presumption of soundness. As no retinal disorder was noted during her enlistment examination, she is presumed to have entered service in sound condition. The statutory law in 1983 pertaining to the presumption of soundness, 38 U.S.C. § 311, stated that to rebut the presumption, the burden is on the government to show by clear and unmistakable evidence that the disability both (1) existed prior to service and (2) was not aggravated by service. As to the first prong, the Board's finding that the retinitis pigmentosa clearly and unmistakably existed prior to service is plausibly supported by the record, as reflected by July 1964 service treatment records, which determined that her retinitis pigmentosa existed prior to service. As to the second prong, the Board acknowledges that the older provisions of 38 C.F.R. § 3.304(b) in effect in 1983 omitted the requirement of clear and unmistakable evidence of no aggravation of an injury in order to fully rebut the presumption of soundness, as compared to 38 U.S.C. § 311. However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), that the presumption of soundness under 38 U.S.C. § 1111 (or its predecessor 38 U.S.C. § 311 ) is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. The Federal Circuit has since held that its interpretation of section 1111 in the Wagner opinion was retroactive because the interpretation of a statute explains "what the statute has meant since the date of enactment." Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011); see also Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction"). As Wagner merely clarified what the evidentiary standard always had been, this was not a new interpretation or new law, and its holding is applicable to this case. Similarly, in Patrick, the Federal Circuit found that a 1986 Board decision which failed to apply the clear-and-unmistakable-evidence standard to the issue of aggravation was not in accordance with the law. As a result, once the Veteran's retinitis pigmentosa was shown by clear and unmistakable evidence to preexist service, the next step was to consider the second prong as to whether clear and unmistakable evidence showed that the Veteran's retinitis pigmentosa was not aggravated during service. As noted above, the June 25, 1984 Board decision's statement that "service medical records do not indicate that there was an ascertainable degree in the underlying pathology of her retinitis pigmentosa, especially in view of the veteran's brief period of service" arguably addresses aggravation; however, it does not satisfy or apply the correct evidentiary standard requiring clear and unmistakable evidence that the condition was not aggravated during service. As already discussed above, failure to apply the clear-and-unmistakable-evidence standard to the issue of aggravation is not in accordance with the law. Therefore, it is undebatable that the June 25, 1984 Board decision incorrectly applied the statutory law pertaining to the presumption of soundness. Finally, the question is, had the incorrect application of the presumption of soundness in the June 15, 1984 Board decision not been made, whether the presumption of soundness would have been rebutted. The Board finds that the evidence at the time of the decision did not clearly and unmistakable show that the Veteran's retinitis pigmentosa was not aggravated during service. To the contrary, the service medical records showed that the Veteran was diagnosed with severe, bilateral retinitis pigmentosa and had atrophy and pigmentation of retina causing progressive diminution of vision. Moreover, it was noted that the Veteran's history of difficulty driving at night and walking for longer periods at night, which were symptoms attributed to her retinitis pigmentosa, had been becoming worse. This evidence, available at the time of the June 25, 1984 Board decision, did not show that the retinitis pigmentosa was clearly and unmistakably not aggravated during service. Thus, the presumption of soundness would not have been rebutted, and service connection would have been warranted at the time of the June 25, 1984 Board decision. Based on the foregoing, the Board concludes that there was clear and unmistakable error in the June 25, 1984 Board decision, and it must be revised. ORDER The June 25, 1984 Board decision contains clear and unmistakable error, and is revised to reflect a grant of service connection for retinitis pigmentosa. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs