Citation Nr: 18143122 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-32 664 DATE: October 18, 2018 ORDER Revision or reversal of the April 1971 rating decision that denied service connection for a bilateral knee disorder on the basis of clear and unmistakable evidence (CUE) is denied. FINDINGS OF FACT 1. The Veteran did not appeal the April 1971 rating decision denying service connection for a bilateral knee disorder. 2. There was no CUE in the April 1971 rating decision denying service connection for a bilateral knee disorder. CONCLUSIONS OF LAW 1. The April 1971 rating decision, denying service connection for a bilateral knee disorder, is final. 38 U.S.C. § 4005 (1968); 38 C.F.R. §§ 19.129, 19.192 (1971). 2. The April 1971 rating decision was not the product of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1970. The case is on appeal from a September 2013 rating decision. In July 2017, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether the April 1971 rating decision that denied service connection for a bilateral knee disorder should be reversed or revised on the basis of CUE. Finality of Prior Rating Decision By an April 1971 rating decision, a claim of service connection for a bilateral knee disorder was denied. Notification was sent to the Veteran as his then current mailing address of record. There is no contention that he did not receive notice of the denial. No new evidence or notice of disagreement was received by VA within one year of the issuance of the April 1971 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 4005 (1968); 38 C.F.R. §§ 19.129, 19.192 (1971). Because the April 1971 rating decision is final, a request to revise or reverse it is viable. CUE Legal Criteria Having found that the April 1971 rating decision became final, the Board will now assess whether there was CUE in the previous adjudicatory action. CUE is a very specific and rare kind of error—i.e., one 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. More succinctly, CUE is an error which undebatable. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See, e.g., 38 C.F.R. § 20.1403(c) (pertaining to CUE in Board decisions). Generally, CUE arises because either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior decision is based on the record and law that existed when that decision was made. See Damrel v. Brown, 6 Vet. App. 242, 245(1994); Fugo v. Brown, 6 Vet. App. 40, 43(1993); Russell v. Principi, 3 Vet. App. 310, 313-14(1992); see also 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. The following are examples of situations that are not CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in the decision; (2) the Secretary’s failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Analysis The Veteran filed his CUE request in June 2012. He alleges that the original April 1971 rating decision denying his claim was a product of CUE because VA failed to consider an August 1968 service treatment record (STR) showing a diagnosis of bilateral chondromalacia patellae and placement on a permanent profile for his knees, his October 1969 report of medical history upon separation of service noting bilateral chondromalacia patellae, and other STRs indicating an on-going knee disorder during service. In conjunction with his initial claim, STRs were requested and received by VA. These include the August 1968 profile, the October 1969 report of medical history, and other STRs indicating that the Veteran had on-going knee problems during service. Thus, the facts, as they were then known, were before those deciding the claim. In January 1971, the Veteran was afforded a VA examination in conjunction with his initial claim. The examination report includes the Veteran’s reports of knee injury in training. However, upon examination, the examiner found no apparent abnormalities in structure or muscle development of the knee. The Veteran was able to complete all test exercises quickly and did not demonstrate any evidence of limitation of motion of any joint. There was no evidence of fluid about the knees. The examiner determined that there were no evidence residuals or limitation of function in the knees. After reviewing the STRs and medical examination report, the RO denied service connection for a bilateral knee disorder (claimed as an injury to both knees and including chondromalacia patellae). The rating decision notes an in-service diagnosis of bilateral chondromalacia and the Veteran’s placement on limited duty for an unspecified period and STRs showing the Veteran’s in-service complaints of pain. However, x-rays were said to be negative and no residuals were found upon examination. (Continued on the next page)   The Board notes that the January 1971 VA examiner did not have access to the Veteran’s STRs. However, the examination was based on the current findings at the time of the examination. Additionally, those on the rating board who denied the claim did have access to the STRs and referenced such. Moreover, at that time, rating boards included a doctor. See Macklem v. Shinseki, 24 Vet. App. 63, 70 (2010). In this case, it is reasonable to find that the doctor on the rating board, after reviewing the STRs and examination report, found that the Veteran did not have a current bilateral knee disorder. This demonstrates that a reasonable mind could find that the Veteran did not have a current bilateral knee disorder at the time of the April 1971 rating decision. Based on the law that existed in April 1971, the rating decision was not the basis of CUE. Thus, the Veteran’s request to revise or reverse the April 1971 rating decision on the basis of CUE is denied. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George