Citation Nr: 18141677 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-10 551 DATE: October 11, 2018 ORDER The claim to reverse September 1975 and July 1977 rating decisions that denied service connection for venereal disease on the basis of clear and unmistakable error (CUE) is denied. New and material evidence having not been received, the appeal to reopen the claim of entitlement to service connection for the herpes simplex virus is denied. FINDINGS OF FACT 1. The September 1975 and July 1977 rating decisions and the January 1978 statement of the case (SOC) did not contain CUE. 2. A September 1975 rating decision denied the claim of entitlement to service connection for venereal disease; the Veteran did not file a timely notice of disagreement (NOD), and no evidence was received within one year of the RO decision, nor were new, relevant service records received any time thereafter. 3. Rating decisions dated in July 1977 and June 1983 denied reopening of the claim of entitlement to service connection for the herpes simplex virus; the denials were continued in January 1978 and August 1983 SOCs, respectively; the Veteran did not file a timely substantive appeal, and no evidence was received within one year of the RO decisions, nor were new, relevant service records received any time thereafter. 4. August 1985 and June 1991 Board decisions denied service connection for the herpes simplex virus; the Veteran did not appeal the Board’s decisions to the United States Court of Appeals for Veterans Claims. 5. A February 2005 rating decision denied reopening of the claim of entitlement to service connection for the herpes simplex virus; the Veteran did not file a timely NOD, and no evidence was received within one year of the RO decision, nor were new, relevant service records received any time thereafter. 6. The evidence associated with the claims file subsequent to the February 2005 rating decision denying service connection for the herpes simplex virus is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for reversal of the September 1975 and July 1977 rating decisions denying service connection for venereal disease on the basis of clear and unmistakable error have not been met. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. § 3.105(a). 2. The September 1975, July 1977, and June 1983 rating decisions, which denied service connection for the herpes simplex virus, became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. 3. The August 1985 and June 1991 Board decisions, which denied service connection for the herpes simplex virus, became final. 38 U.S.C. §§ 7104, 7266; 38 C.F.R. §§ 20.1100, 20.1104. 4. The February 2005 rating decision, which denied reopening of the claim of entitlement to service connection for the herpes simplex virus, became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. 5. The evidence received subsequent to the February 2005 rating decision is not new and material to reopen the claim of entitlement to service connection for the herpes simplex virus. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from August 1972 to October 1974. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 1. Entitlement to reversal of September 1975 and/or July 1977 rating decisions that denied service connection for venereal disease on the basis of CUE The Veteran in this case contends that September 1975 and July 1977 rating decisions that denied service connection for venereal disease contained CUE. Specifically, he contends that he was treated for the herpes simplex virus during active service in September 1974, and that, although he did not have any signs of the virus at the time of discharge, the virus was still present, and that he has continued to experience almost yearly outbreaks of lesions similar to the one for which he received treatment in service. He states that the September 1975 and July 1977 rating decisions failed to consider that the herpes virus is permanent, and that reliance on the negative separation examination report was therefore in error. For the reasons set forth below, the Board finds that there is no CUE in the September 1975 or July 1977 rating decisions. The September 1975 rating decision denied service connection for venereal disease. This decision was not appealed and became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The July 1977 rating decision confirmed the September 1975 denial; the Veteran filed a timely notice of disagreement (NOD), and the January 1978 SOC continued denial of the claim for service connection for herpes simplex virus. The Veteran did not file a timely substantive appeal, and the July 1977 rating decision also became final. Id. An unappealed decision of the RO or the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1400. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). CUE is a very specific and rare kind of “error.” It is the kind of error in 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 manifestly have been different but for the error. Even when 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 ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). 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). In addition, an assertion of CUE is a motion or a request, rather than a claim. See Hillyard v. Shinseki, 24 Vet. App. 343, 355-356 (2011) (citing Rice v. Shinseki, 22 Vet. App. 447, 451 (2009) (“Motions alleging clear and unmistakable error... in a prior decision have also often been referred to as ‘claims’”). The Board notes that a CUE motion is a collateral attack on an otherwise final rating decision by a VA regional office. 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 43-44. Therefore, a movant 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). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). Where evidence establishes CUE, the prior decision in question will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative 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). Turning to the evidence of record, an August 1972 pre-induction examination report shows that the Veteran checked “yes” next to “VD – Syphilis, gonorrhea, etc.” on his Report of Medical History, and that the clinician noted a history of gonorrhea. In July 1974, the Veteran underwent a separation examination at which clinical evaluation of the genitourinary system was marked as normal, and a Cardiolipin test for syphilis was non-reactive. In September 1974, one month prior to service separation, the Veteran had a dermatology consultation for a penile ulcer. Darkfield test for syphilis was positive. He was prescribed 2.4 million units of Bicillin, long-acting, to be taken two times weekly. A service treatment record from the following day indicates that Cardiolipin test was non-reactive, but the diagnosis remained syphilis. Six days later, the Veteran was cleared for duty, and it was noted that he would not need any additional appointments. In October 1974, the Veteran signed a statement indicating that his medical condition had not changed since his separation examination conducted in July 1974. In July 1975, the Veteran filed a claim of entitlement to service connection for venereal disease. The September 1975 rating decision denied the claim, noting the September 1974 service treatment record showing a positive Darkfield test, and that he was cleared for duty a week later. The Board finds no CUE in the September 1975 rating decision. The requirement for a detailed statement of reasons and bases was inapplicable at the time of the challenged rating decision. See, e.g., Natali v. Principi, 375 F.3d 1375 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Joyce v. Nicholson, 19 Vet. App. 36 (2005) (because the law prior to the enactment of the Veterans’ Benefits Amendments of 1989 did not require the RO to set forth in detail the factual bases for its decisions, nor provide in depth discussion of applicable law, the failure to do so was not clear and unmistakable legal error at the time of such decisions, and the rating board was presumed to have made the requisite findings under a presumption of validity). Thus, although the September 1975 rating decision did not thoroughly explain the basis for denial, it noted the positive Darkfield test during active service, indicating a diagnosis of syphilis, and that the condition was treated and cleared prior to separation. The rating decision’s discussion of the evidence of record at that time is therefore a satisfactory basis for the denial, and there is no indication of CUE. Next, in June 1977, the Veteran filed a request to reopen his claim for service connection for herpes simplex virus. He submitted VA Hospital records from December 1974, showing that, two months after service separation, he was admitted to the VA Hospital for several weeks. The Hospital Summary states that the discharge diagnosis was herpes eruption on glans penis. He presented with a fever and a vesicle lesion of the penis, with a noted history of gonorrhea and syphilis. The clinician concluded that the lesion was most likely herpes virus type II. CBC and SMA-18 were negative. On discharge, the penile lesion was clear, and the Veteran was afebrile. He was to follow up in the hematology clinic. The July 1977 rating decision confirmed the previous denial of service connection for herpes simplex virus, noting that the December 1974 VA Hospital records were reviewed. As noted above, the Veteran filed a timely NOD with respect to the July 1977 rating decision. In the January 1978 SOC, the RO stated that “while the Veteran was treated in service for a condition shown as herpes simplex virus, initially claimed as venereal disease, no residuals of the condition were found at the time of last examination.” The Veteran has stated that the January 1978 SOC acknowledged a diagnosis of herpes simplex virus in service, as well as the evidence showing a diagnosis of herpes simplex virus following service separation in December 1974, and thus, the claim should have been granted. The Board notes that the January 1978 SOC inexplicably states that the Veteran’s treatment for a penile ulcer in September 1974 was for herpes simplex virus, despite the fact that the service treatment records do not indicate a diagnosis or finding of herpes simplex virus at any time, and a Darkfield test for syphilis was positive in September 1974, clearly showing that the Veteran was diagnosed with and treated for syphilis, not the herpes simplex virus. While the statement that the Veteran was treated for herpes simplex during active service in the January 1978 SOC is therefore in error, it does not constitute the type of error contemplated by the statutes and regulations pertaining to CUE discussed above. These regulations are intended to address situations in which the correct facts were not before the adjudicator, or in which correct facts were not considered, such that the outcome would have been manifestly different. In this case, the correct facts – diagnosis and treatment for syphilis during active service – were unfavorable to the Veteran, and the SOC indicates that the correct facts were considered in that it discusses the service treatment records from September 1974 in the list of evidence considered. The evidence, showing diagnosis and treatment for syphilis in service, and law at the time of the July 1977 rating decision and January 1978 SOC supports the RO’s conclusion. Therefore, if the SOC did not contain the misstatement of fact, the outcome of the case would have remained the same. In other words, if the SOC had correctly stated that the Veteran was diagnosed with and treated for syphilis in service, the claim would still have been denied. Therefore, the Board finds that the SOC’s mischaracterization of the evidence (that the Veteran was treated for herpes in service) does not constitute CUE. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for herpes simplex In July 1975, the Veteran filed an initial claim for service connection for a venereal disease. The claim was denied in a July 1975 rating decision, as discussed above, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In June 1977, the Veteran filed a request to reopen the claim for service connection for a venereal disease, and, as discussed above, the claim was denied again in a July 1977 rating decision, which became final. Id. In May 1983, the Veteran filed another request to reopen his claim for service connection for herpes simplex virus. In a June 1983 rating decision, the RO denied reopening of the claim, finding that no new and material evidence demonstrating a medical nexus between the current condition (herpes) and active service had been received. The Veteran filed a timely NOD, and the RO continued to deny reopening of the claim in an August 1983 SOC. The Veteran did not file a timely appeal, and no evidence was received within one year of the RO decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the June 1983 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In January 1984, the Veteran filed another request to reopen his claim, and it was denied in a January 1984 rating decision. After the denial was confirmed in multiple rating decisions dated in May 1984, September 1984, and December 1984, the claim was ultimately appealed to the Board, which denied the claim for service connection for herpes simplex virus in an August 1985 decision, finding no medical nexus. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans’ Claims (Court). Consequently, the Board’s August 1985 decision became final. See 38 U.S.C. §§ 7104, 7266; 38 C.F.R. §§ 20.1100, 20.1104. In October 1988, the Veteran filed another request to reopen his claim for service connection for herpes simplex, and, ultimately, the Board again denied the claim in a June 1991 decision. The June 1991 Board decision also became final. Id. In April 2004, the Veteran filed a request to reopen his claim, and the RO denied reopening of the claim in a February 2005 rating decision, finding that no new and material evidence demonstrating a nexus had been received. The Veteran did not file a timely NOD with that decision, and no evidence was received within one year of the RO decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the February 2005 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In June 2014, the Veteran filed a request to reopen his claim of entitlement to service connection for herpes, and, in the April 2015 rating decision that is the subject of this appeal, the RO continued denial of service connection. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran’s claim is whether new and material evidence has been received to reopen the claim of entitlement to service connection for the herpes simplex virus. Notwithstanding the determination of the RO regarding reopening or not reopening the claim, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). “New” evidence is defined as evidence not previously received by agency decision-makers. “Material” evidence means 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 order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been received, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminating the previous requirement of a well-grounded claim). 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. The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the last final February 2005 rating decision denying service connection included service treatment records, post-service VA and private treatment records, records from the Social Security Administration (SSA), VA examination reports and opinions, and the Veteran’s statements. Service treatment records, as discussed above, demonstrated that the Veteran was diagnosed with and treated for syphilis during active service in September 1974. Following separation from service, the Veteran was hospitalized in December 1974 and diagnosed with the herpes simplex virus. VA treatment records from October 1983 show that he came in for a complaint of open herpes sores on his penis with new lesions erupting six days prior. He gave a history of having a penile ulcer in 1974 while in service, at which time he stated no Darkfield or culture was taken (contrary to the service treatment records from September 1974 which show a positive Darkfield test). He stated that he was told by the medical corpsman that it was syphilis and was treated accordingly. He stated that he was hospitalized about six weeks later, after discharge, with a fever and painful ulcers of the penis, and his discharge diagnosis was herpes. Since then he reported that he had experienced periodic eruptions. A December 1983 culture was positive for the herpes virus. Statements submitted by the Veteran in December 1997 and January 1998 show that he believed that he was diagnosed with and treated for the herpes virus during active service. Based on this evidence, in February 2005, the RO denied reopening of the claim for service connection, finding that there was no new and material evidence of a medical nexus between the current herpes simplex virus and active service. Evidence added to the record since the time of the last final denial in February 2005 includes updated post-service treatment records, which show ongoing treatment for herpes, additional statements from the Veteran expressing his belief that he was diagnosed with herpes simplex virus during active service, and a VA opinion. A VA opinion was obtained in April 2015. The VA physician reviewed the Veteran’s claims file and opined that the claimed condition (herpes) is not related to service. The physician reasoned that the Veteran’s service records do not document chronic on-going treatment or diagnosis of herpes, noting that the ulcer for which he was treated in September 1974 was found to be a syphilitic ulcer, which is a distinct and separate diagnosis from herpes. The doctor, reiterating that the ulcer for which the Veteran was treated in service was not herpes, concluded that further applications for service connection for herpes should not be considered without specific new documentation from the time of service. In sum, none of the evidence submitted and received since the last final denial demonstrates a medical nexus between the current herpes simplex virus and active service, and the Veteran’s statements are redundant in that he has reiterated his assertions that his herpes first manifested during active service. The essence of his statements has not changed. The evidence added to the record since the previous February 2005 denial of the claim for service connection for the herpes simplex virus does not constitute new and material evidence. Although most of the evidence is new, in that it was not associated with the claims file prior to the last final denial in February 2005, for the reasons set forth above, such evidence is not material because it is redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the claim. As noted above, the statements of the Veteran on the matter are redundant and cumulative because they just reiterate previously considered assertions. Moreover, the medical evidence continues to show treatment for the herpes simplex virus but does not indicate a medical nexus between the current disorder and active service, so such evidence does not relate to an unestablished fact. Indeed, the April 2015 VA opinion weighs against the claim. All the evidence together does not raise a reasonable possibility of substantiating the claim for service connection. Therefore, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have not been satisfied, and the claim of entitlement to service connection for the herpes simplex virus cannot be reopened. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Sherrard, Counsel