Citation Nr: 18148852 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-18 805 DATE: November 8, 2018 ORDER The motion to revise the April 15, 1977, rating decision, which denied service connection for calluses and warts status-post remedial surgery of bilateral hammer toes and bunions, on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. An unappealed April 1977 VA Regional Office (RO) rating decision denied entitlement to service connection for hammertoes, bunions, calluses, and/or warts with a remedial surgery based on a finding that the disability pre-existed service and was not aggravated by service. That decision is final. 2. The evidence does not show that at the time of the April 15, 1977, rating decision denying service connection for hammertoes, bunions, calluses, and/or warts with a remedial surgery, the correct facts were not before the VA adjudicator or the statutory or regulatory provisions were incorrectly applied, or that there was an error made by a VA adjudicator that was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. CONCLUSION OF LAW The criteria to revise an April 15, 1977, rating decision denying service connection for calluses and warts status-post remedial surgery of bilateral hammer toes and bunions on the basis of CUE have not been met. 38 U.S.C. §§ 310, 311 (1974); 38 C.F.R. §§ 3.105, 3.303, 3.304 (1977). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from October 1972 to October 1976. In numerous statements throughout the appeal, including in an April 2012 CUE claim, April 2016 substantive appeal to the Board (VA Form 9), and an August 2017 appellate brief, the Veteran and/or her attorney contended that there was CUE in the April 15, 1977, rating decision that denied service connection for hammertoes, bunions, calluses, and/or warts with a remedial surgery because the VA adjudicator at the time failed to correctly apply the law pertaining to the presumption of soundness for the Veteran’s claim. A final and binding agency decision shall not be subject to revision on the same factual basis, except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105 and § 3.2600. Section 3.2600 exception pertains to situations when the decision in question has not become final either by an appellate decision or failure of the claimant to timely appeal. The procedural history of the Veteran’s case shows that the RO denied entitlement to service connection for hammertoes, bunions, calluses, and/or warts with a remedial surgery in an April 15, 1977, rating decision. The RO had found that the disability had pre-existed service and was not aggravated by service. The Veteran was notified of this decision by a May 1977 letter, but she did not appeal this decision or submit new and material evidence within one year. Thus, the April 15, 1977, rating decision is final. The Veteran did not file another claim for service connection for any disabilities of her feet until an August 2003 application to reopen entitlement to service connection. A March 2007 Board decision reopened the claim of entitlement to service connection and granted service connection for calluses and warts of the feet. An April 2007 RO rating decision effectuated the grant of service connection and assigned an effective date of August 1, 2003, which was the date the Veteran filed her claim to reopen. The Veteran, through her attorney, contends that service connection should have been granted at the time of the April 15, 1977, rating decision, as the adjudicator committed CUE in not granting service connection at that time. Section 3.105 exception allows for the revision of the decision in question on the grounds of CUE. According to 38 C.F.R. § 3.105(a), where the evidence establishes such error, the prior decision will be reversed or amended. A rating, or other adjudicative decision that 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 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (Court) has established a three-prong test defining CUE, which is as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence 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 adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). “In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” See Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. See id. “[I]t 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. Thus, even where 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, [CUE].” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The record in an appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact. Importantly, a finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 314 (1992). In multiple statements, including in August 2017, the Veteran’s attorney contended that service connection for the Veteran’s calluses and warts of the feet should have been granted in the April 1977 rating decision because VA failed to correctly apply the presumption of soundness to the Veteran’s case. Specifically, the Veteran and her attorney contend that the RO failed to provide clear and unmistakable evidence that the Veteran’s bilateral foot disability pre-existed her active duty service and that it failed to provide clear and unmistakable evidence that this disability was not aggravated by active duty service. 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 the 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); see 38 U.S.C. § 311 (1974); 38 C.F.R. § 3.304(b) (this part of the regulation has not changed since 1977). Only such conditions as are recorded in examination reports are to be considered as noted. Id. To rebut this presumption of soundness, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Following her separation from active duty service in October 1976, the Veteran filed an original claim for service connection for callouses and bunions that same month. She was afforded a VA examination in January 1977. In denying the Veteran’s claim in the April 15, 1977, rating decision, the RO determined that the Veteran’s bilateral foot disability pre-existed service and was not permanently aggravated by service. Specifically, the RO noted that the service treatment records showed that she was treated for multiple calluses and/or plantar warts in service in November 1975. The RO noted that the service treatment records showed she had reported that she had the plantar calluses and/or warts for most of her life. The April 1977 rating decision noted that the service treatment records also showed that the Veteran was hospitalized in service on January 27, 1976, because of a painful bilateral bunion deformity and painful hammertoes, which were present for 10 years. The RO further noted that the Veteran had a bilateral bunionectomy and arthoplasty in January 1976. The VA adjudicator explained that the Veteran had painful feet with bunions and hammertoes, as well as callouses and/or plantar warts, prior to service and determined that the surgery in service must be considered as remedial with no permanent aggravation shown. The Veteran’s attorney contends that there was CUE in the April 15, 1977, rating decision because the presumption of soundness applied to the Veteran’s case, which he states the VA adjudicator did not discuss, and that the RO failed to show clear and unmistakable evidence that her bilateral foot disabilities pre-existed service and were not aggravated by service. The Board notes that the Veteran’s attorney has cited to regulations and findings after the applicable period, including the Board’s March 2007 rationale for reopening and granting the claim of entitlement to service connection for this disability, to show that the April 15, 1977, rating decision was incorrectly decided. However, as noted above, the record in an appeal to be reviewed for CUE is the record and law that existed at the time of the April 15, 1977, rating decision, and not additional evidence submitted or otherwise obtained after the fact. In the August 2017 statement, the Veteran’s attorney asserted that the Veteran’s feet were noted as normal in her August 1972 service enlistment report of medical examination and no abnormalities were noted in the report of medical history pertaining to her feet at entry into active duty service. A review of the Veteran’s service treatment records, including the August 1972 service enlistment reports of medical examination and medical history, shows that the Veteran’s feet were found to be clinically normal upon entry into active duty service. Thus, the presumption of soundness applied to her claim for service connection for a bilateral foot disability. This current finding by the Board is in agreement with the Veteran’s allegation. However, the Board finds that the evidence does not show that at the time of the April 15, 1977, rating decision denying service connection for hammertoes, bunions, calluses, and/or warts with remedial in-surgery, the correct facts were not before the VA adjudicator or that the statutory or regulatory provisions were incorrectly applied, and that there was an error made by a VA adjudicator that was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Specifically, the Veteran and her attorney contend that the RO failed to show clear and unmistakable evidence that her bilateral foot disabilities pre-existed service because the only evidence relied upon to make this finding were the Veteran’s statements in service treatment records and to the January 1977 VA examiner, and the January 1977 VA examiner’s findings. The Board concludes that the Veteran was competent to describe the pre-service presence and history of bunions, hammertoes, callouses, and/or plantar warts on her feet because she could perceive and observe these symptoms through her own senses. Additionally, the Board finds these statements made by the Veteran to be both credible and highly probative as to the presence of these symptoms prior to the Veteran’s service because she made these statements contemporaneously with receiving medical treatment for these disorders. The Veteran’s attorney has contended that the Veteran’s lay statements indicating that her bunions, hammertoes, callouses, and/or plantar warts pre-existed her service do not, in themselves, constitute evidence of a pre-existing disorder and are not sufficient to rebut the presumption of soundness. He cited to the Court’s opinions in Paulson v. Brown, 7 Vet. App. 466, 470 (1995), Crowe v. Brown, 7 Vet. App. 238, 246 (1994), and Miller v. West, 11 Vet. App. 345, 348 (1998) to support his contentions, which he states all established holdings that a claimant cannot establish the pre-existence of a disability based on his or her own statements. However, the Board notes that in in Doran v. Brown, 6 Vet. App. 283 (1994), the Court held that the presumption of soundness was rebutted by clear and unmistakable evidence based on that veteran’s own admissions during clinical evaluations of a pre-service history of a psychiatric disorder. Specifically, the Court stated the following, in part: In this case, a portion of the appellant’s service medical records, including his service entrance examination report, were unavailable and are presumed to have been lost in a fire at the National Personnel Records Center (NPRC) in 1973. Based upon the record before the Court, however, we conclude, as a matter of law, that the presumption of soundness was rebutted by clear and unmistakable evidence consisting of appellant’s own admissions during clinical evaluations in October and November 1950 of a preservice history of psychiatric problems. Doran, 6 Vet. App. at 286. Thus, in the Doran case, the Court found that the Veteran’s own admissions were sufficient evidence to find that the disability had clearly and unmistakably existed prior to service. While subsequent Court cases found, in certain circumstances, that a veteran’s own statements were insufficient to establish the pre-existence of a disability, the change in what evidence could and could not establish the pre-existence of a disability supports the finding that the April 1977 adjudicator’s reliance of the Veteran’s own statements that her foot symptoms existed prior to service was supportable. For example, as shown by the Court’s caselaw, reasonable minds could differ as to whether lay statements alone could constitute clear and unmistakable evidence that a disorder pre-existed service, as the Court had held in the Doran case that lay statements were sufficient, but then held in subsequent cases that they were not sufficient to establish the pre-existence of a disability. Accordingly, the Board finds as fact that the April 1977 VA adjudicator’s determination that the Veteran’s lay statements to medical professionals during clinical evaluation and in connection with receiving treatment for her symptoms constituted clear and unmistakable evidence that her bunions, hammertoes, callouses, and/or plantar warts pre-existed service was not CUE. The Veteran and her attorney contend that even if there was clear and unmistakable evidence that the Veteran’s foot disabilities pre-existed service, the RO failed in its April 15, 1977, rating decision to show clear and unmistakable evidence that the bilateral foot disabilities were not aggravated by service because the RO provided a conclusory statement that the Veteran’s in-service January 1976 bilateral foot surgery was remedial with no permanent aggravation shown. They contend that the VA adjudicator failed to provide any analysis or medical evidence to support this finding. The attorney noted that the Veteran’s service treatment records showed two physical profile findings, as well as additional treatment for the bilateral feet following the surgery, which he states contradict this conclusion. The Board does not find that the Veteran’s allegations establish CUE. The Court has held that in order to establish CUE in a pre-February-1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case. Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005); see Crippen v. Brown, 9 Vet. App. 412, 420 (1996) (noting that prior to February 1, 1990, when a code section was added requiring RO decisions to specify the evidence considered and the reasons for the disposition, rating decisions generally lacked such specificity). While the April 1977 rating decision did not use the terms “clear and unmistakable evidence” or “presumption of soundness,” this rating decision includes specific findings that the Veteran’s bilateral foot disability pre-existed service and was not aggravated by her active duty service. Thus, the RO did not fail to consider service connection based upon aggravation of a pre-existing disorder in its April 1977 rating decision. The Board finds that it was not CUE that the RO did not use the terms “clear and unmistakable evidence” or “presumption of soundness” as this alleged error was not outcome determinative. See Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002). Additionally, the Board finds that it is not clear from the face of the decision that the presumption of soundness was not considered in the RO’s adjudication, as the adjudicator addressed both pre-existence and aggravation. See Joyce, 19 Vet. App. at 46. Additionally, there is evidence in the record that supports the adjudicator’s conclusion that the disability was not aggravated during service. For example, after the January 1976 surgery, the Veteran underwent an examination on March 30, 1976 (approximately two months later), wherein the examiner determined that clinical evaluation of the Veteran’s feet was normal. Under “Summary of Defects and Diagnoses,” the examiner listed defective visual acuity and hearing loss. The Veteran’s feet were not found to be a defect. Under the PULHES physical profile, the lower extremities were assigned a “1,” which is a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In the corresponding Report of Medical History that the Veteran completed at that time, she reported a history of foot trouble, which the examiner noted was the bunionectomy she underwent in January 1976 for both feet. There was no inclusion of symptoms the Veteran was experiencing at that time, versus the notation that she had undergone surgery because of a history of foot trouble. The Veteran was on light duty in February 1976, but that is consistent with her surgery, as the January 29, 1976, surgical report included that the Veteran would have a temporary profile for six weeks and that she would be placed on convalescent leave for 21 days. Although the Board acknowledges the Veteran’s contentions, as well as those of her attorney, that the RO failed to show clear and unmistakable evidence that the Veteran’s bilateral calluses and warts status-post remedial surgery for hammer toes and bunions pre-existed service and were not aggravated by service, these assertions do not constitute CUE. The contentions made by the Veteran and her attorney are no more than a disagreement with how the evidence was weighed by the adjudicator at the time of the April 15, 1977, rating decision, which the Court has held does not constitute CUE. Again, the record does not show, and the Veteran does not allege, that the correct facts were not before the VA adjudicator at the time the April 1977 rating decision was issued. The Veteran and her attorney contend that the statutory or regulatory provisions were incorrectly applied by the VA adjudicator, namely, that the adjudicator relied on certain evidence, including the Veteran’s statements in January 1977 that her symptoms existed for 10 years and service treatment records in which the Veteran stated that she had plantar calluses and/or warts for most of her life, to show clear and unmistakable evidence that the Veteran’s disability pre-existed service and was not aggravated by service. Instead, the Veteran and her attorney point to other evidence, including some of her other service treatment records and two physical profile findings, to show that the record did not contain clear and unmistakable evidence that this disability pre-existed service and was not aggravated by service. This amounts to disagreeing with how the VA adjudicator weighed the evidence in the April 15, 1977, rating decision, and cannot constitute CUE. Accordingly, for all the reasons laid out above, the Board must deny the Veteran’s claim because the criteria have not been met for reversing or revising the April 15, 1977, rating decision, which denied service connection for hammertoes, bunions, calluses, and/or warts, on the basis of CUE. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel