Citation Nr: 1806055 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-15 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether the January 1985 rating decision denying entitlement to service connection for medial meniscotomy of the left knee should be revised or reversed on the grounds of clear and unmistakable error (CUE). 2. Whether the January 1985 rating decision denying entitlement to service connection for medial collateral ligament tear of the right knee should be revised or reversed on the grounds of clear and unmistakable error (CUE). REPRESENTATION Veteran represented by: Katrina Eagle, Attorney ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to January 1976. The case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. In a decision dated January 18, 1985, the Board denied the Veteran's claims of entitlement to service connection for a medial meniscotomy of the left knee and medial collateral ligament tear of the right knee. 2. Regarding the left knee, the evidence of record at the time of the January 18, 1985 rating decision clearly and unmistakably established that the Veteran was diagnosed with medial meniscotomy of the left knee during service, and there was no evidence of a pre-service injury, an error which would have manifestly changed the outcome of the decision. 3. Regarding the right knee, the correct facts as they were known at the time of the January 1985 decision were before the RO; the statutory or regulatory provisions extant at the time, were correctly applied; there was a tenable basis for the RO's determination regarding the right knee; and the Veteran has not alleged any specific error by the Board that would have manifestly changed the outcome of the appeal. CONCLUSIONS OF LAW 1. Regarding the left knee, the January 18, 1985 rating decision was clearly and unmistakably erroneous in denying service connection for medial meniscotomy of the left knee, and it is hereby revised to reflect granting such a claim as if it had been granted at the time of that decision. Therefore, an effective date of October 5, 1984, is assigned for the award of service connection for the left knee. 38 U.S.C. §§ 5109A, 7105 (1982, 2012); 38 C.F.R. §§ 3.105(a), 3.303 (1984, 2017). 2. Regarding the right knee, the January 18, 1985 RO decision denying entitlement to service connection for medial collateral ligament tear of the right knee does not contain clear and unmistakable error. 38 U.S.C. §§ 5109A, 7105 (1982, 2012); 38 C.F.R. §§ 3.105(a), 3.303 (1984, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants under Veterans Claims Assistance Act of 2000 (VCAA) do not apply to claims alleging CUE in a Board decision. Parker v. Principi, 15 Vet. App. 407 (2002). Therefore, no discussion of the VCAA is necessary in the instant appeal. The Veteran seeks revision of a January 1985 regional office decision, wherein it denied service connection for injury to both knees on the basis of CUE. In a January 1985 decision, the RO denied the Veteran's claim of entitlement to service connection for injury to both knees. That decision was not appealed and is final. 38 C.F.R. § 20.1103. To overcome the finality of the rating decision, the Veteran could show that it was clearly and unmistakably erroneous (CUE). A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a). 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. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). To establish CUE, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. See Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE motion. Damrel, 6 Vet. App. at 245; see also Crippen v. Brown, 9 Vet. App. 412 (1996) (finding that the claimant simply requesting that the Board reweigh or reevaluate the evidence is not a valid claim of CUE). 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/or (4) 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. In order to establish service connection for the claimed disability at the time of the January 1985 decision, the facts must have demonstrated that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 C.F.R. § 3.303 (1984). In the instant case, service treatment records show that the Veteran's February 1972 pre-induction entrance examination was normal, with no knee problems listed by the Veteran or examining clinician. In November 1974, the Veteran complained of a history of buckling of the left knee periodically for the past three years and history of twisting his knee during basic training three years ago. It was painful and swollen. The clinician noted a probable MCL tear in the left knee and scheduled an arthrogram. It was noted in December 1974 that his symptoms still persisted and he was scheduled for a medial meniscotomy. In March 1975, the Veteran underwent a medial meniscectomy on his left knee. In April 1975, the Veteran reported that he had an injury to right knee three years ago at Fort Sill. There was in impression of ligament instability. On October 5, 1984, the Veteran submitted a claim for service connection for his right and left knee, and listed his post service treatment at the VA medical center (VAMC) in 1984. The RO obtained December 1983 VAMC records noting the Veteran was in a motor vehicle accident and experienced a knee contusion. April 1984 VAMC treatment records noted the Veteran had swelling in his right knee and that he could not stand to put weight on it. X-rays were taken and the clinician noted the condition was probably secondary to his motor vehicle accident. In December 1984, a letter was sent to the Veteran requiring evidence that his claimed disabilities had been treated since service. A January 18, 1985 rating decision found that the left knee disorder preexisted service with remedial surgery in service and no aggravation shown. It also found that the right knee disorder shown in service was "acute [and] transitory" and that the present disability was due to an "intercurrent trauma." In February 2010, the Veteran submitted a new claim for service connection for his knee disabilities. He was afforded a VA examination in May 2010, which provided a positive nexus opinion, and he was subsequently granted service connection for both disabilities in August 2010, effective February 23, 2010. In September 2010, the Veteran claimed CUE with the findings of the 1985 rating decisions. A January 2013 statement indicated that the Veteran was claiming CUE in the January 1985 decision, with regard to the left knee because there was no evidence that the left knee injury pre-existed service, and with regard to the right knee, because there was no evidence that his disability was acute and transitory. Left Knee As a threshold matter, the Board finds the arguments advanced by the Veteran and his attorney to allege CUE in the January 1985 denial of service connection have been conveyed with the requisite specificity and, will therefore, adjudicate the merits of the claim. See Simmons v. Principi, 17 Vet. App. 104, 114-115 (2003); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing the denial of a CUE claim, due to a pleading deficiency, and the denial of a CUE on the merits). In the case of the left knee, the 1985 rating decision denied the claim and noted a left knee disorder preexisted service with no aggravation shown. The facts in 1985 showed treatment in service for a left knee condition starting in November 1974 with no indication that the injury had occurred prior to service. The RO made, first, a clearly erroneous statement of fact and, second, an incorrect conclusion of law by concluding that the Veteran's statements in service that he had left knee problems for three years meant that therefore his knee disability was a pre-existing injury that was not aggravated in service. There was no notation of a pre-existing knee condition upon entrance into service and the RO incorrectly overlooked the other part of the service treatment records which noted that he had a history of twisting his knee during basic combat training three years ago. Therefore the timeline of three years was still referencing a period of service. February 1972, the start of his service, was almost three years prior to his complaints in November 1974. In short, since there was no factual basis in the record for the RO's conclusion the Veteran's left knee disability was due to a pre-existing injury, and the Veteran had consistent complaints that he injured his left knee in basic training, it is clear the outcome of the claim would have been different if this error of finding the left knee injury pre-existed service was not made. Therefore, under the laws that existed at the time of the rating decision, there was clear and unmistakable error in the January 18, 1985 rating decision in regards to the left knee disability. See 38 C.F.R. § 3.105(a); Damrel, supra. Right Knee As a threshold matter, the Board finds the arguments advanced by the Veteran and his attorney to allege CUE in the January 1985 denial of service connection have been conveyed with the requisite specificity and, will therefore, adjudicate the merits of the claim. See Simmons v. Principi, 17 Vet. App. 104, 114-115 (2003); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing the denial of a CUE claim, due to a pleading deficiency, and the denial of a CUE on the merits). The Board has reviewed the evidence of record and the law extant at the time of the January 1985 rating decision denying service connection for a right knee injury, and for the following reasons concludes that there is no demonstration of CUE sufficient to revise that decision. Regardless of any questions regarding the clarity, completeness, or persuasiveness of the textual explanation of legal and factual analysis in the January 1985 decision, the Veteran's sought revision of that decision on the basis of CUE requires a demonstration that the outcome of the January 1985 RO rating decision undebatably would have been an award of service connection for his right knee disability if the adjudication had proceeded without the alleged error(s). As an award of service connection for the right knee on January 1985 would require a showing that the Veteran was diagnosed with a right knee pathology that had onset during military service or was causally/etiologically linked to military service, the allegation of CUE must assert that the evidence clearly and unmistakably demonstrated in-service onset or a causal/etiological link between the Veteran's right knee at the time of the January 1985 decision and his right knee symptoms during service. The Board concludes that the evidence of record in 1985 did not present a clear and unmistakable showing (did not render it undebatable) that the Veteran's right knee disability in 1985 represented a disability that had onset during service or a causal/etiological link to service. The Veteran and his attorney appear to be relying upon the finding in the 1985 rating decision that the Veteran's right knee disorder show in service was acute and transitory as evidence of CUE. See January 2013 Notice of Disagreement. The Board finds that it was reasonable for the January 1985 RO rating decision to conclude that the evidence did not establish a causal/etiological link or nexus between the right knee complaints in service and the right knee complaints shown in April 1984, given that no other medical evidence was provided by the Veteran except the VA treatment records showing his knee injury in April 1984, which the clinicians noted was secondary to his December 1983 motor vehicle accident. Accordingly, the Board cannot find that it is undebatable that the outcome of the claim for service connection for the right knee would have been different in January 1985 had it not been for an alleged error. In addition, this claim can be further distinguished from the finding of CUE in the left knee rating decision, as there was no undebatably incorrect finding that the right knee disability pre-existing service. The Veteran and his attorney do not identify any reasonable basis to conclude that all relevant laws and regulations were not properly considered and applied, nor is such reasonably reflected by the evidence of record. Although the Veteran and his attorney identify details of the January 1985 rating decision that they argue are erroneous, the Board finds that it was reasonable to conclude that the Veteran's symptoms were not causally/etiologically linked to military service or the in-service right knee injuries due to the intervening motor vehicle accident in 1983, after which the Veteran had notations of treatment for his right knee injury secondary to his accident. Therefore a finding of an absence of demonstrated causal nexus is not undebatably false. In this light, there is no indication or explanation as to how the outcome of the January 1985 decision would undebatably have been favorable to the Veteran but for any other identified error; in the absence of evidence establishing causal nexus between the knee complaints in 1984-1985 and the right knee injury in military service, such as a positive nexus opinion at the time, none of the other alleged errors in the January 1985 decision could clearly and undebatably result in a change in the outcome of the denial of service connection. Based on the evidence, it cannot be found that the January 1985 rating decision's denial of service connection for the right knee was undebatably incorrect. The RO considered the correct facts and correctly applied the pertinent law and regulations then in effect. Any disagreement about how the facts were weighed or evaluated does not constitute a factual or legal basis for a CUE claim. Damrel, 6 Vet. App. at 245. The Veteran argues that the knee complaints noted in the STRs in 1974 were not "acute and transitory." However, such an argument is clearly a disagreement over how the facts were weighed or evaluated in January 1985, and does not constitute a factual or legal basis for a CUE claim. The January 1985 rating decision to deny service connection for a right knee medial collateral ligament tear is supportable. It cannot be said that reasonable minds could only conclude that the January 1985 determination was in error, particularly as there was no competent medical opinion actually stating that the right knee injury was causally/etiologically linked to the Veteran's in-service knee injury or otherwise caused by or linked to military service, and there was an intervening accident and right knee injury following service. The Board finds that there is no undebatable error in the January 1985 adjudication of the claim for service connection for the right knee. Considering the pleadings of CUE, for the reasons articulated, the RO did not misapply the law in its rating decision of January 1985 such that a different outcome would have otherwise resulted, and the decision did not contain CUE of law or fact. Regardless of whether or not the Veteran has identified any flaws in the January 1985 decision's stated explanation (such as the alleged error of that decision's referring to his right knee disorder as "acute" and "transitory"), entitlement to service connection was not undebatably demonstrated by consideration of the evidence of record at that time under proper application of the correct laws. See 38 C.F.R. § 3.105(a); Damrel, supra. ORDER As there was clear and unmistakable error in the January 1985 rating decision denying entitlement to service connection for left medial meniscotomy an effective date of October 5, 1984, is assigned for the grant of service connection for left knee medial meniscectomy. The denial of entitlement to service connection for a right knee in the January 1985 rating decision was not clearly and unmistakable erroneous. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs