Citation Nr: 1805365 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-48 262A ) DATE ) ) THE ISSUE Whether a prior decision, dated February 17, 2009, of the Board of Veterans' Appeals that denied service connection for a back disorder, should be revised or reversed on the grounds of clear and unmistakable error (CUE). (The issues of service connection for a right shoulder disability, bilateral hearing loss, a cervical spine disability, posttraumatic stress disorder (PTSD), bilateral hand osteoarthritis, a bilateral foot condition claimed as Athlete's foot, a petition to reopen a claim of entitlement to service connection for a back disability, to include as secondary to the knee; and an increased rating higher than 10 percent for right knee degenerative joint disease; an increased rating higher than 10 percent for left knee chondromalacia patella, patellofemoral syndrome, with minimal degenerative joint disease; and well as a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities are addressed in a separate Board decision.). REPRESENTATION Moving party represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The moving party in this case had active military service from April 1986 to March 1990, and February 1991 to March 1991. In his pending motion, the Veteran seeks revision or reversal of a February 17, 2009 decision of the Board of Veterans' Appeals (Board) that denied service connection for a claimed back disorder. FINDING OF FACT The Board's February 17, 2009 decision was reasonably supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were either not considered or were misapplied. CONCLUSION OF LAW The February 17, 2009 Board decision which denied entitlement to service connection for a low back disability does not contain clear and unmistakable error. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.105(a), 20.1400, 20.1403, 20.1404 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The U.S. Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist under the VCAA do not apply to allegations of clear and unmistakable error in prior decisions of the Board, because a CUE motion is not a claim or an appeal, but is a collateral attack upon a previous final decision. Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc); Simmons v. Principi, 17 Vet. App. 104, 109 (2003). II. Clear and Unmistakable Error Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice, Rule 1400 through Rule 1411, codified at 38 C.F.R. §§ 20.1400-141 1 (2017). A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(a). In addition, 38 C.F.R. § 20.1404(b) provides that the motion 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 the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. Id. The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision. 38 C.F.R. § 20.1400. Section 20.1403(a) provides that CUE is a very specific and rare kind of error. It is the kind of error of fact or law which, 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. See 38 C.F.R. § 20.1403(a); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). The review for clear and unmistakable error in a prior Board decision must be based on the record and the law which 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 that, 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 error. See 38 C.F.R. § 20.1403(b) (c); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). The following situations do not constitute CUE: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) VA failure to fulfill the duty to assist; (3) a disagreement as to how the facts were weighed or evaluated; and (e) 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 pertinent statute or regulation. 38 C.F.R. § 20.1403(d)-(e). See also 38 U.S.C. §§ 501(a), 7111 (2012). The Veteran submitted a statement in January 2010 that he was asserting clear and unmistakable error in a Board decision, dated February 17, 2009, that denied entitlement to a back disorder. The Veteran asserted that there was clear and unmistakable error in that he had fallen off of an LCU boat into the ocean in December 1988; there was a buddy statement in February 2007 noting that the Veteran had complained of back pain after the incident; an x-ray of the back in October 1999 noted disc space narrowing; a January 2005 VA examination report showed a diagnosis of chronic back strain; and an August 2006 MRI showed degenerative joint disease and facet hypertrophic changes with mild degrees of canal stenosis at both L3-4 and L4-5, broad based protrusion at L4-5 with displacement without overt compression of the descending nerve roots bilaterally, mild degrees of bilateral neural foraminal encroachment at L3-4 and moderate degree of neural foraminal encroachment bilaterally at L4-5. Another statement by the Veteran received in January 2010 notes that the VA examination in January 2005 was done without review of the claims file and the follow-up opinion in May 2005 did not include an examination. The Veteran asserted that the back condition had been a series of speculations and not followed up by valid medical evidence based on current examinations and review of the medical records and VA files. The Veteran argued that the same situation of not using current medical records/ VA files was the basis for the denial by the Board, for which the Veteran had a private physician conduct an examination and MRI. Finally, the Veteran asserted that the benefit of the doubt rule was not properly applied for his claim. In his first statement it appears that the Veteran is essentially claiming that the Board did not consider all of the favorable evidence of record in its decision. However, the Board noted the service treatment records showing the finding of the Veteran falling off an LCU ("landing craft utility") boat into the ocean; the February 2007 buddy statement that he had witnessed the Veteran complaining of back pain after the LCU boat incident in service; the October 1999 orthopedic progress note showing that the Veteran had suspected disc space narrowing; the January 2005 VA examination report showing a diagnosis of chronic back strain; and the August 2006 MRI showing degenerative joint disease and facet hypertrophic changes with mild degrees of canal stenosis at both L3-4 and L4-5, broad based protrusion at L4-5 with displacement without overt compression of the descending nerve roots bilaterally, mild degrees of bilateral neural foraminal encroachment at L3-4 and moderate degree of neural foraminal encroachment bilaterally at L4-5. This evidence all was specifically referenced and considered in the February 2009 Board decision. As for the Veteran's second statement, the Board noted the findings in the January 2005 VA examination and May 2005 follow-up opinion, as well as the September 2006 opinion from a private doctor that was submitted that was favorable to the Veteran's claim. Upon review of the record, the Board found that the May 2005 VA medical opinion was the most probative of record that found no continued symptoms of back pain from the injury in service until 1999 when he was first diagnosed with a back disability. The Board considered the benefit of the doubt doctrine in the decision but found that the preponderance of the evidence was against the claim. After review of the record, the Board finds that there was no CUE committed in the February 2009 Board decision with respect to its finding on the question of whether the Veteran's back disability was related to service. While the Veteran contends that the correct facts were not before the Board at the time of the February 2009 decision, the record shows that the Board considered all of the evidence referenced by the Veteran. There also is no indication that the Board did not apply the correct law to this case. VA law provides that service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including arthritis, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). The Board found that there was no evidence that the Veteran's back disability was incurred in service or that he had continued symptomatology of a back disability after service, based on the May 2005 VA medical opinion, in addition to the other evidence of record, cited above. The Board considered the benefit of the doubt doctrine and found that the preponderance of the evidence was against the Veteran's claim. The Board considered the Veteran's statements and the buddy statements; but went on to determine that there was insufficient evidence to relate his current back disability to the complaints in service, which is a factual determination. A disagreement over how the facts were weighed or evaluated does not constitute CUE. See 38 C.F.R. § 20.1403(d)-(e); see also 38 U.S.C. §§ 501(a), 7111. The argument that the VA medical opinions provided in May 2005 and July 2005 were insufficient amounts to a failure of the Board's duty to assist, which also can never be a basis for CUE. 38 C.F.R. § 20.1403(d)-(e). See also 38 U.S.C. §§ 501(a), 7111 (2012). The February 2009 Board's conclusion was reasonable and supported by the evidence then of record and the applicable statutory and regulatory provisions in existence at that time. For the reasons and bases expressed above, the Board finds that the February 2009 decision of the Board did not contain CUE. Thus, the motion seeking revision or reversal of that decision must be denied. ORDER The CUE motion is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs