Citation Nr: 18147569
Decision Date: 11/06/18	Archive Date: 11/05/18

DOCKET NO. 16-35 306A
DATE:	November 6, 2018
ORDER
As the May 25, 2011 Regional Office (RO) rating decision contained clear and unmistakable error (CUE) in the denial of service connection for right knee condition, the May 25, 2011 rating decision is revised to reflect a grant of service connection for right knee condition, effective December 8, 2010, the date of the claim.
FINDING OF FACT
The May 25, 2011 rating decision denying service connection right knee condition was not based on the evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual errors, the outcome would have been manifestly different, namely, service connection for right knee condition would have been assigned from December 8, 2010, the date of claim. 
CONCLUSION OF LAW
The May 25, 2011 rating decision denying service connection for right knee condition was clearly and unmistakably erroneous.  38 U.S.C. §§ 101(22)(A), 101(24)(B), 1131, 5109A (2012); 38 C.F.R. §§ 3.102, 3.105, 3.303, 3.304, 3.6(a), (c) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the United States Navy from July 1981 to July 1984 and active duty training in the United States Navy Reserve including from July 12,1992 to July 31, 1992.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a final May 2011 rating decision denying the Veteran’s claim for entitlement to service connection for right knee condition and that declined to revise or reverse the May 2011 rating decision on the basis of CUE.    
The Veteran’s pending NOD on the issue of entitlement to service connection for sleep apnea has been acknowledged and is being processed by the RO, and so the board will decline to take jurisdiction over the issue at this time. 
Duty to Notify and Assist
Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159.  The Veteran will not be prejudiced because of the Board’s adjudication of the claims below.
Service Connection
Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.”  Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
CUE in the May 25, 2011 RO rating decision
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 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.  Baldwin v. West, 13 Vet. App. 1, 5 (1999).
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 indicated, further, that the “undebatable error” contemplated is such that it can be said that reasonable minds could only conclude that the original decision was fatally flawed.  Marlow v. Brown, 5 Vet. App. 146, 149 (1993).
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 time of the May 2011 rating decision, then, as now, service connection could be granted for disability which was shown by medical evidence to be caused or aggravated by an in-service injury or disease.  38 C.F.R. § 3.303.
Further, when all the evidence was assembled, VA was responsible for determining whether the evidence supported the claim or was in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence was against the claim, in which case, the claim would be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
“In order for there to be a valid claim of [CUE]... the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Id. at 313; see also Damrel v. Brown, 6 Vet. App. 242 (1994). Moreover, a CUE motion must identify the alleged error(s) with “some degree of specificity.” Crippen, 9 Vet. App. at 420; Fugo, 6 Vet. App. at 44 (“to raise CUE there must be some degree of specificity as to what the alleged error is and... persuasive reasons must be given as to why the result would have been manifestly different”). Simmons v. Principi, 17 Vet. App. 104, 111 (2003).
At the outset, the Board finds that the May 25, 2011, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one-year appeal period following that decision.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). New and material evidence for right knee is moot in light of the Board’s finding herein of CUE in that decision and the award of service connection for the right knee disability.
Next, the Board finds the allegations of CUE made by the Veteran and 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).  Specifically, the Veteran argues that the RO failed to consider the evidence indicating that the Veteran’s injury was sustained during activity active military service.  
The term “active military, naval, or air service” is defined in part to include “active duty” and “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a) (2005). Jackson v. Nicholson, 21 Vet. App. 80 (2006).
“Active duty for training” means, among other things, “full-time duty in the Armed Forces performed by Reserves for training purposes.” 38 U.S.C. § 101(22)(A). Id. 
At the time of the May 2011 decision, the Veteran’s service treatment record showed that the Veteran was issued a “Certification of Physical Fitness for Active Duty for Training” (Certification) on July 12, 1992 by a medical department representative of the NAVMARCORRESCEN in Raleigh, North Carolina.  
The Certification stated that the Veteran was physically qualified to perform annual training for an illegible number of days.  The second digit of the handwritten number is not clear enough to determine whether it is an entire 7 or part of a 2.  Thus, showing the Veteran was entering “active duty for training” status (active military service) on or around July 12, 1992 for a period of 12 or 17 days.
At the bottom of the Certification is the section titled “Release from Annual Training.”  In this section there is a statement that reads: “I certify that I have not suffered serious disease or injury during the period of annual training completed this date.”  There is a handwritten note under the member’s signature which reads, “See SF600 dated 7-27-1992.”  Hence, showing the Veteran was in active military service on or around July 12, 1992 for a period of 12 or 17 days and calling attention to the record of treatment for his right knee. 
In a July 27, 1992 service treatment record, the Veteran was seen at the Orthopedic Department of the United States Naval Academy in Annapolis, Maryland.  The Veteran reported having “right knee pain for some time with increase severity in last two weeks.  Especially hurts more with sitting for long periods and going up stairs.”  The examiner diagnosed the Veteran with patellofemoral syndrome of the right knee. Thus, showing the Veteran was injured during active military service or at least that a previous right knee disorder was aggravated during the active duty training.
On a July 22, 1992 consultation sheet to physical therapy for the Veteran’s right knee, the July 28, 1992 consultation report was completed. In the consultation report, the examiner diagnosed the Veteran with “PFS right knee.”  Further showing the Veteran reported sustaining a right knee injury during a period of active military service; was treated for the right knee injury during a period of active military service; and was diagnosed with patellofemoral syndrome of the right knee during a period of active military service.
At the time of the May 2011 decision, the Veteran’s claims file contained a May 11, 2011 VA Examination Report.  In the report, the examiner opined, “his right patellofemoral syndrome is at least as likely as not a continuation of the complaints shown while on active duty.”  Hence, providing a nexus between the Veteran’s disability and injury incurred during active military service.
The examiner goes on to note the rationale for the medical opinion as, “medical records document the presence of right patellofemoral syndrome during his time in the service (1992 and 1996), and according to his history, the condition has persisted since that time.  There is no documentation provided that indicates otherwise.”  Consequently, validating the Veteran’s claim of the in-service right knee injury based on the service treatment records available at the time of the May 25, 2011 rating decision.  
In the May 25, 2011 rating decision, the RO erred when it was stated that, “a treatment report form the Transmitter Facility dated July 22, 1992, which was not during a period of your active military service...”  
At the time of the rating decision, the Veteran’s service treatment records reflected that the Veteran was in a period of active service beginning on or around July 12, 1992 for 12 or 17 days. The service treatment records reflected that the Veteran was injured during that active military service period. 
It is undebatable that, had the RO not made this factual error, the outcome of the rating decision would have been manifestly different, namely, the right knee injury would have been declared an in-service injury and along with the nexus provided by the VA examiner during the May 11, 2011 examination, service-connection for right knee condition would have been granted and a rating assigned from December 8, 2010, the date of claim.   
The RO was in error when it was stated, “A treatment report from NAVMARCORESCEN dated July 27, 1996 not during a period of your active military service shows you received continued treatment for your right patellofemoral syndrome.”  
At the time of the rating decision, the Veteran’s service records reflected that the referenced July 27, 1992 SF600 was the treatment report from NAVMARCORESCEN referred to by the RO as being dated July 27, 1996.  This error does rise to the level of a clear and unmistakable error.   
At the time of the rating decision, the Veteran’s service records reflected that the Veteran was in a period of active duty training service; the Veteran’s service treatment records reflected that the Veteran was injured during that active military service period; and the Veteran’s claims file contained a validation of the Veteran’s claim of the in-service right knee injury based on the service treatment records by a VA examiner. 
It is undebatable that, had the RO not made these factual errors, the outcome of the rating decision would have been manifestly different, namely, the right knee injury would have been declared an in-service injury and along with the nexus provided by the VA examiner during the May 11, 2011 examination, service-connection for right knee condition would have been granted and a rating assigned from December 8, 2010, the date of claim.
The RO committed legal errors by not properly applying 38 U.S.C. §§101(22)(A), 101(24)(B); 38 C.F.R. §§ 3.102, 3.303, 3.6(a) (2005), namely by: 
1.	Failing to properly determine that the Veteran’s active duty for training status was active military service in accordance with 38 U.S.C. §101(22)(A); 38 C.F.R. § 3.6(a);
2.	Failing to properly determine that the Veteran’s injury occurred or was aggravated during a period of active military service in accordance with 38 U.S.C. § 101(24)(B); 
3.	Failing to properly determine whether the May 11, 2011 medical opinion supported the Veteran’s claim or was in relative equipoise, with the Veteran prevailing in either event in accordance with 38 C.F.R. § 3.102; and 
4.	Failing to properly determine that the Veteran’s right knee condition was service connected in accordance with 38 C.F.R. § 3.303.
It is undebatable that, had the RO not made these errors, the outcome of the rating decision would have been manifestly different, namely, the right knee injury would have been declared an in-service injury and along with the nexus provided by the VA examiner during the May 11, 2011 examination, service-connection for right knee condition would have been granted and a rating assigned from December 8, 2010, the date of claim.  Based on the record and law that existed at the time of the May 25, 2011 rating decision, reasonable minds could conclude that decision was fatally flawed at the time it was made. Therefore, the Board concludes that the RO committed clear and unmistakable error in the May 25, 2011 rating decision denying service connection for right knee condition.  The May 25, 2011 rating decision will be revised to reflect a grant of service connection for right knee condition, effective December 8, 2010, the date of claim.
 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. NeSmith, Associate Counsel