Citation Nr: 18140024 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-19 694 DATE: October 2, 2018 ORDER The appeal to reopen service connection for a back disorder is denied. The Department of Veterans Affairs (VA) Regional Office (RO) February 1967 administrative decision and February 1989 statement of the case (SOC) finding that an April 1966 motor vehicle accident resulting in a spinal injury was not in the line of duty were not clearly and unmistakably erroneous. FINDINGS OF FACT 1. A June 1967 RO rating decision denied service connection for a back disorder, finding that the motor vehicle accident that caused the back/spinal injury was not in the line of duty. The Veteran did not file a timely notice of disagreement (NOD) following the June 1967 rating decision, and no new and material evidence was received during the one year appeal period following that decision. 2. A subsequent May 1972 RO rating decision continued the denial of service connection for a back disorder. The Veteran did not file a timely NOD following the May 1972 rating decision, and no new and material evidence was received during the one year appeal period following that decision. 3. In December 1988, the RO found no new and material evidence to reopen service connection for a back disorder. The Veteran filed a NOD to the denial in December 1988, and a SOC was sent to the Veteran in February 1989. The Veteran did not subsequently perfect the appeal. 4. In December 1998, the RO again declined to reopen the issue of service connection for a back disorder due to the Veteran’s failure to submit new and material evidence. The Veteran did not file a timely NOD following the December 1998 decision, and new and material evidence was not received during the one year appeal period following that decision. 5. In a December 2010 SOC, the RO reopened service connection for a back disorder to consider whether improper transport after the motor vehicle accident warranted the granting of service connection. The RO again denied service connection, finding the injury was not in the line of duty, and the appeal was not subsequently perfected. 6. The evidence associated with the claims file subsequent to the December 2010 adjudication does not relate to an unestablished fact that is necessary to substantiate the claim for service connection for a back disorder, or is cumulative and redundant of evidence previously of record. 7. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the February 1967 and February 1989 VA line of duty determinations, or that the RO incorrectly applied the applicable laws or regulations existing at the time. CONCLUSIONS OF LAW 1. All prior rating decisions denying service connection or reopening of service connection for a back disorder became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the most recent rating decision in December 2010 is not new and material to reopen service connection for a back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017) 3. The February 1967 VA administrative decision finding that an April 1966 motor vehicle accident resulting in a spinal injury was not in the line of duty was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 4. The February 1989 SOC finding that the April 1966 motor vehicle accident resulting in a spinal injury was not in the line of duty was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from April 1965 to September 1966. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the RO in Des Moines, Iowa. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging clear and unmistakable error (CUE). Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Further, neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist concerning the issues on appeal. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the issues on appeal. 1. New and Material Evidence to Reopen Service Connection for a Back Disorder Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Lay contentions to support new theories alone are not competent evidence, and cannot serve to support reopening of a claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. A June 1967 RO rating decision denied service connection for a back disorder, finding that the motor vehicle accident that caused the back/spinal injury was not in the line of duty. The Veteran did not file a timely NOD following the June 1967 rating decision, and no new and material evidence was received during the one year appeal period following that decision. A subsequent May 1972 RO rating decision continued the denial of service connection for a back disorder. The Veteran did not file a timely NOD following the May 1972 rating decision, and new and material evidence was not received during the one year appeal period following that decision. In December 1988, the RO found no new and material evidence to reopen service connection for a back disorder. The Veteran filed a NOD to the denial in December 1988, and a SOC denying reopening was sent to the Veteran in February 1989. The Veteran did not subsequently perfect the appeal. In December 1998, the RO again declined to reopen service connection for a back disorder, finding no new and material evidence. The Veteran did not file a timely NOD following the December 1998 decision, and no new and material evidence was received during the one year appeal period following that decision. Finally, in a December 2010 SOC, the RO reopened service connection for a back disorder to consider whether improper transport after the April 1966 motor vehicle accident warranted the grant of service connection. The RO again denied service connection, finding the injury was not in the line of duty, and the appeal was not subsequently perfected. As such, the previous rating decisions became final as to the evidence then of record, and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. As explained in a June 1966 Judge Advocate General (JAG) investigative report, in April 1966, during service, the Veteran was injured in a motor vehicle accident while absent without leave (AWOL), which resulted in severe back/spinal injuries to the Veteran. Based upon this evidence, the JAG found the Veteran’s injuries were not in the line of duty. Subsequently, in February 1967, a VA administrative decision found that the Veteran sustained injuries as a result of a motor vehicle accident in Illinois while on unauthorized leave. As the Veteran’s duty station was in California, the absence without leave materially interfered with the Veteran’s duties. As such, the administrative decision found that the Veteran’s April 1966 accident was not in the line of duty. Based upon this determination, multiple subsequent rating decisions denied service connection for a back disorder due to the motor vehicle accident not being in the line of duty. In a November 2009 statement, the Veteran argued that improper medical transport after having been taken back into naval custody was the cause of a currently diagnosed back disorder, and not the motor vehicle accident outside the line of duty. This argument was adjudicated in a December 2010 SOC. While the RO reopened the question of service connection for a back disorder based upon this new theory, the RO again denied service connection, finding that the spinal disorder was due to the motor vehicle accident, which was not in the line of duty. The appeal was not perfected and the December 2010 SOC became final. Subsequently, the Veteran and representative offered a new theory of entitlement to service connection for a back disorder, as discussed in a January 2017 brief. Specifically, the Veteran and representative now argue that the Veteran’s back injury, which was caused by the April 1966 motor vehicle accident outside the line of duty, was aggravated (rather than caused) by improper medical transport and treatment after the Veteran had been taken into custody. In support of this new theory of entitlement, the Veteran and representative submitted a January 2017 private opinion letter in which a private physician noted that the type of treatment the Veteran received following a spinal injury could “result in worse outcomes and more chronic problems.” As discussed above, new theories of entitlement are not a basis for reopening a claim unless accompanied by new and material evidence supporting the new theory of entitlement. Boggs, 520 F.3d at 1336-37. While the January 2017 private opinion letter may be sufficient to reopen a claim where aggravation is potentially at issue, here, as will be discussed below, the question of aggravation is irrelevant to the question of service connection for a back disorder under the facts of this case. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). At the time of the service entrance examination, 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 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. § 1111 (2012). Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b) (2017). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2017); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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. § 1153; 38 C.F.R. § 3.306(a). As can be seen by the emphasized portions above, the question of aggravation of an injury or disease is only relevant to injuries or diseases that preexisted entry into service. Here, the Veteran entered service in April 1965, and the spinal injury occurred during a motor vehicle accident in April 1966, during the Veteran’s period of service. The fact that the injury was found to have occurred outside the line of duty due to the Veteran’s AWOL status does not mean that the injury occurred prior to service, which would be necessary to grant service connection on an aggravation basis. The line of duty determination does not transform the issue of service connection for a back disorder from one of direct service connection for an in service injury or disease under 38 C.F.R. § 3.303 to one of aggravation of a pre service injury or disease under 38 C.F.R. § 3.306. For all the reasons discussed above, service connection for the currently diagnosed back disorder cannot be granted under a theory of aggravation, as such a theory applies solely to injuries and diseases that preexisted service. As discussed above, the fact the back injury was found to have occurred outside the line of duty due to the Veteran’s AWOL status does not mean that the injury occurred prior to service, which would be necessary to grant service connection on an aggravation basis. As service connection cannot be granted on an aggravation basis, the submission of the January 2017 private opinion does not constitute material evidence because it does not relate to an unestablished fact necessary to substantiate the claim. Again, the evidence associated with the claims file subsequent to the December 2010 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim for service connection for a back disorder, or is cumulative and redundant of evidence previously of record. As VA has not received both new and material evidence relevant to the question of service connection for a back disorder, which cannot be granted under a theory of aggravation, the issue may not be reopened. Under these circumstances, the Board finds that new and material evidence to reopen entitlement to service connection for a back disorder has not been received. As such, the prior final rating decisions remain final, and the appeal to reopen must be denied. As the evidence has not fulfilled the threshold burden of being new and material evidence to reopen the finally disallowed issue, the benefit of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. CUE in Prior Line of Duty Determinations Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 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 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the February 1967 administrative decision and February 1989 SOC finding that the Veteran’s April 1966 motor vehicle accident resulting in a spinal injury was not in the line of duty became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. Next, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). The first CUE argument, as discussed in the January 2017 brief, is that the prior line of duty determinations failed to address an August 2, 1966 service record noting that the unauthorized absence charges against the Veteran had been dismissed. Review of the service records reflects that in August 1966 the charge of unauthorized absence for the period from March 1966 to May 1966 was dismissed to expedite medical retirement and transfer to a veteran’s hospital. Nothing in the record indicates that the charges were dismissed because it was found the Veteran was not AWOL, rather it simply appears that the charges were dismissed to ease the Veteran’s separation from service and to expedite the receipt of medical care. As such, the argument that VA failed to consider the August 2, 1966 service record concerning dismissal of charges appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43-44. The second CUE argument, as discussed in the August 2013 claim and January 2017 brief, is that the prior line of duty determinations erred in finding the motor vehicle accident not in the line of duty because the Veteran had already attempted to surrender to naval authorities and was denied. In the January 2017 brief, the representative argued that the Veteran did not make a conscious decision to not surrender in California, after attempting to turn himself in at a base in Iowa, because the subsequent failure to report was due to financial issues. A written statement from the Veteran accompanying a September 1966 record of discharge reflects that in April 1966, prior to the motor vehicle accident, the Veteran attempted to turn himself in at a naval reserve station in Iowa. As the Veteran was stationed in California at the time, the Veteran was informed that the reserve station did not have the authority to take the Veteran into custody. The reserve station advised that the Veteran needed to travel to the Great Lakes Naval Station and surrender there. Per the statement, the Veteran chose not to make the trip to Great Lakes Naval Station because he was both scared and without funds to make the trip. Whether or not the lack of funds, by itself, would prevent a finding that the Veteran made a conscious decision to fail to report to Great Lakes Naval Station in California, the Veteran, by his own admission in the September 1966 statement, admitted that he failed to report to Great Lakes Naval Station due to both a lack of funds and fear about what would happen upon being taken into custody. Choosing not to turn oneself in to authorities due to potential legal consequences would constitute a conscious decision. As such, this argument also appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43-44. (Continued on the next page)   Review of the record reflects no other significant CUE arguments raised by the Veteran or representative; therefore, because the arguments presented by the Veteran and representative amount to nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE under the relevant legal authority, the Board finds there was no CUE in the February 1967 administrative decision and February 1989 SOC finding that the Veteran’s April 1966 motor vehicle accident resulting in a spinal injury was not in the line of duty. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43-44; Cook, 318 F.3d at 1346; Henry, 2 Vet. App. at 90. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel