Citation Nr: 18150861 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-47 652 DATE: November 16, 2018 ORDER The challenge to the November 1978 rating decision based on clear and unmistakable error (CUE) in the denial of the claim for service connection for postductal coarctation of the aorta (heart condition) is denied. FINDING OF FACT In a November 1978 rating decision, VA denied service connection for postductal coarctation of the aorta; the Veteran has not established that the correct facts, as they were then known, were not before the Regional Office (RO) in November 1978; additionally, it is not undebatable as to whether error occurred in applying statutory provisions and that but for any such alleged error, the outcome of the decision would have been different. CONCLUSION OF LAW The November 1978 rating decision denying entitlement to service connection for postductal coarctation of the aorta does not contain clear and unmistakable error. 38 U.S.C. §§ 311, 353 (1958); 38 U.S.C. §§ 1111, 1153, 5101, 5109A (West 2012); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1978 to October 1978. CUE in the November 1978 Rating Decision Law Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). If the record establishes such clear and unmistakable error, the prior decision will be reversed or amended; a finding of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.105(a). In determining whether a prior determination involves clear and unmistakable error, 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 clear and unmistakable error 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). That an error is undebatable means that reasonable minds could not differ. 38 C.F.R. § 20.1403(a). An assertion of clear and unmistakable error 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). 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 v. Brown, 6 Vet. App. 40, 43-44 (1993). Therefore, a [veteran] who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a [veteran] who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Discussion The Veteran asserts that a heart condition was not noted at the time of his enlistment into service or that symptoms of such were not noted and the condition was diagnosed after enlistment. He asserts that he was therefore entitled to the presumptions of soundness and aggravation as to a heart condition, which the RO did not consider in the November 1978 rating decision. The Board notes that the Veteran is not currently service-connected for a heart condition. Turning to the evidence of record, a September 1978 treatment report indicates that the Veteran was referred to cardiology because of hypertension and murmurs on September 21, 1978. The report notes that the Veteran complained of frequent epistaxis and nasal stuffiness. He denied headache, chest pain, or palpitations. A diagnosis for coarctation of aorta was indicated with a disposition of “EPTE not service aggravated discharge.” An October 1978 Medical Board Proceeding conducted after the Veteran’s treatment also indicates that he was referred to cardiology to evaluate a history of hypertension and a systolic murmur. The report indicates that clinically, the Veteran had been “almost totally asymptomatic.” The report notes that the Veteran only experienced mild increased fatigability with heavy exertion, described as running a mile or more. The report notes that the Veteran was first told that he had hypertension about two years prior but that further follow up was not done. The diagnosis was noted as postductal coarctation of the aorta, and the recommendation was administrative separation or “Medical Board EPTE.” The Veteran was medically discharged from service in October 1978. In November 1978, he filed a claim for aggravation of postductal coarctation of the aorta. The claim was denied in the November 1978 rating decision currently being appealed. As to facts, the RO indicated that the Veteran had a discharge diagnosis of postductal coarctation of the aorta and was discharged by the Medical Board for preexisting condition, not aggravated by service. The RO’s disposition was that postductal coarctation of the aorta is a constitutional or developmental abnormality and not a disability under the law, and that there was no evidence that the condition was aggravated by the Veteran’s period of military service. The Veteran was properly notified of the November 1978 rating decision by letter sent in November 1978. The Veteran did not appeal the decision within one year, and the November 1978 rating decision therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In September 2013, the Veteran filed a claim for CUE regarding the November 1978 rating decision denying service connection for postductal coarctation of the aorta. In the claim, he asserts that VA failed to properly apply the enumerated regulatory provisions of presumption of soundness and aggravation. The Veteran noted that he entered active duty in the U.S. Marine Corps on August 30, 1978. He also cited to the Medical Board report from October 1978 stating that, “According to the man’s [Veteran’s] own statement, accepted by the Board, he was not aware of any abnormality prior to his enlistment.” The Veteran noted that the report indicates that he did, in retrospect, state that he remembers being told on one occasion that he had high blood pressure, but nothing was done as far as follow-up evaluation. The Veteran also noted that the Medical Board stated that the actual diagnosis of postductal coarctation of the aorta was not ascertained until September 28, 1978, when he underwent cardiac catheterization. The Veteran asserts that prior to the September 1978 catheterization, all that was known was simply that he developed high blood pressure, faint femoral pulses bilaterally, and had a systolic murmur. He further asserts that the heart murmur was not discovered by examination until training day six following entrance into active duty. He asserts that all of these symptoms were of unknown diagnostic significance prior to the heart catheterization, which then formally diagnosed the condition of postductal coarctation of the aorta on an original basis. He asserts that at the time of his enlistment and AFEES examination, there was no abnormality of the heart or lungs noted by the examiner. He asserts that specifically, there was no documentation that there was a heart murmur, diminished pulses, shortness of breath, skin cyanosis, or any other cardiovascular or pulmonary abnormality that could be associated with a formal diagnosis of postductal coarctation of the aorta. He asserts that the only cardiovascular abnormality was a mildly elevated systolic blood pressure reading. He asserts that he was not given a diagnosis of hypertension at that time, nor sent for further work-up or evaluation of the blood pressure. He asserts that as he passed the enlistment examination, he entered active duty with presumption of soundness on August 30, 1978. He asserts that following the diagnosis, he was released from active duty on October 17, 1978, for reasons “coarctation, aorta, 7471 EPTE.” He noted that further paperwork indicates findings of a Medical Board with “discharge by reason of enlisted in error, i.e. failure to meet enlistment physical standards.” He noted that EPTE means “existed prior to entrance.” He asserts that this statement regarding EPTE is erroneous as he passed his enlistment exam and received a presumption of soundness from a legal standpoint when he entered into active duty. He asserts that there is no evidence that his condition existed prior to entrance as it had never been diagnosed prior to enlistment. The Veteran also asserts that because he was denied service connection in the November 1978 rating decision, VA committed CUE. He asserts that this is not merely a matter of difference in opinion in interpreting facts of this case. He asserts that the record shows that the rater did not take into consideration the factual evidence in regard to a presumption and apply it to applicable VA laws. He further asserts that if it were not for VA’s misapplication of the laws and regulations, the outcome of the rating decision would have been manifestly different if the postductal coarctation of the aorta would have been service connected and granted a compensable rating in 1978. He asserts that this was not a harmless error because it prevented him from receiving entitlement to an increased amount of financial compensation benefits over many years, which would have attempted to equalize his normal earning capacity as compared to non-disabled persons of society by granting monetary funds so as to be equal with the rest of society. Lastly, the Veteran asserts that the original date of claim for service connection was in 1978, and his effective date for benefits would have been the date following his separation from service, October 18, 1978. He asserts that based on the foregoing explanation of VA’s CUE, the requested benefits should be granted with an effective date of October 18, 1978. In an April 2014 statement, the Veteran clarified that his CUE claim is not for the effective date assigned (noting, correctly, that there is no effective date assigned as the claim was denied). He reiterated that his CUE claim is in regard to the postductal coarctation of the aorta for which statutory provisions were not properly applied in adjudicating the claim. In an October 2014 rating decision, the RO denied the Veteran’s claim for CUE. The RO reasoned that the regulations covering presumption of soundness and aggravation apply when the claimant is accepted and enrolled for service. The RO indicated that in this case, the Veteran was not actually accepted and enrolled for active military service. At the outset, the Board notes that the issue of whether the Veteran was enlisted was not raised by the RO in the November 1978 rating decision. As such, it is not an issue now in deciding if there was CUE in the November 1978 rating decision. In a December 2014 notice of disagreement, the Veteran responded to the RO’s assertion that he had not been enlisted. As discussed, this matter is not at issue. He also reiterated that the heart condition was not discovered until after he began active duty. He stated that on approximately day six of basic training, he complained of nasal congestion, which led to a scheduled doctor’s appointment and ultimately led to the discovery of a heart murmur. Merits Having reviewed the evidence of record, the Board does not find that the Veteran has established a valid claim of CUE in the November 1978 rating decision. The first prong of a claim for CUE refers to a decision based on incorrect facts or statutory provisions not being applied. In the case at hand, the Veteran has not indicated that the November 1978 rating decision was based on incorrect facts. Nor does the record suggest as such. In the November 1978 rating decision, the RO relied on the fact that the Veteran’s diagnosis for postductal coarctation of the aorta is a constitutional, also referred to as congenital, and developmental condition. There is no evidence of record to suggest that this diagnosis was incorrect. Instead, the Veteran’s argument for CUE is that the statutory provisions regarding the presumptions of soundness and aggravation were not afforded to him in the November 1978 rating decision denying service connection for postductal coarctation of the aorta. Presumption of Soundness The statutory law in place at the time of the November 1978 rating decision is guiding. See Damrel v. Brown, 6 Vet. App. at 245 (1994). In 1978, the statutory law concerning the presumptions of soundness and aggravation was codified under 38 U.S.C. § 311 (1958). The provision provides that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service except as to defects noted at the time of the examination, acceptance, and enrollment or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 311 (1958) (now codified at 38 U.S.C. § 1111 (2017)). To rebut the presumption of soundness, the burden is on the government to show by clear and unmistakable evidence that the disability both (1) existed prior to service and (2) was not aggravated by service. Id. As the rating decision being appealed was issued 40 years ago, the Board acknowledges at the outset that a change in the interpretation of a statute is a potential exception to a finding of clear and unmistakable error. See 38 C.F.R. § 20.1403(e). However, the Board emphasizes that the current interpretation of the statute regarding the presumptions of soundness and aggravation is applied retroactively dating back to the implementation of the provisions in 1958. The Federal Circuit clarified in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) that the presumption of soundness under 38 [U.S.C.] § 1111 (or its predecessor 38 U.S.C. § 311) is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. Importantly, the Board notes that Wagner was essentially a statement of what the statute creating the presumption of soundness has meant since its enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (a judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction). In addition, the Federal Circuit has held that its interpretation of section 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains “what the statute has meant since the date of enactment.” Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). As Wagner merely clarified what the evidentiary standard had always been, the holding was not a new interpretation or new law. As to the facts of this case, in the November 1978 rating decision, the RO determined that the condition is a constitutional or developmental abnormality. The Board acknowledges that the RO did not explicitly address or explain that the presumption of soundness did not attach to this type of condition. However, prior to 1988, the RO was not required to provide a statement of reasons or bases as to its conclusions. See Natali v. Principi, 375 F.3d 1375, 1381 (Fed.Cir.2004) (holding that statements of reasons or bases in RO decisions were not required prior to “the Veterans’ Benefits Amendments of 1989, Pub.L. No. 101–237, 103 Stat.2062 (1988), which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision”); see also Eddy v. Brown, 9 Vet. App. 52, 58 (1996) (holding that “silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record”). Accordingly, to establish CUE based on the failure to consider a particular fact or law “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). Here, as the RO stated that the condition was developmental, existed prior to service, and was not aggravated by service (which does speak to the presumption of soundness), it is not clear from the face of the November 1978 rating decision that the RO did not consider the presumption of soundness. Moreover, while the RO did not explicitly address the presumption of soundness, the evidence of record at the time of the November 1978 rating decision supports that the presumption of soundness did not attach. Although a heart condition was not listed at the time of enlistment and the Veteran was not diagnosed until after his enlistment, the RO determined, as noted, that the condition was constitutional and developmental. For VA purposes, a constitutional condition is another term for a congenital condition. Congenital means “existing at, and usually before, birth.” Dorland’s Illustrated Medical Dictionary, 410 (31st ed. 2007). As such, by definition of the term congenital, the nature of the Veteran’s heart condition as constitutional/congenital is sufficient to clearly and unmistakably establish that it existed prior to his military service regardless of whether it was noted at entry into service. Moreover, under the law in effect at the time of the November 1978 rating decision, developmental defect and constitutional/congenital abnormality was not a disability for VA purposes. 38 C.F.R. § 3.303(c) (26 FR 1579, Feb. 24, 1961). The Federal Circuit has held that 38 U.S.C. § 1111 only grants veterans a statutory presumption of soundness for “injuries” and “diseases,” and that when a valid VA regulation such as 38 C.F.R. § 3.303(c) designates something as not an injury or disease, the presumption of soundness does not come into play. Morris v. Shinseki, 678 F.3d 1346, 1354 (Fed Cir. 2012). As such, because of the nature of the Veteran’s heart condition as constitutional/congenital, the presumption of soundness did not attach. Therefore, the November 1978 rating decision does not contain CUE in not providing the Veteran the presumption of soundness. The Board acknowledges that current statutory law distinguishes between congenital diseases and defects in applying the presumption of soundness. In the November 1978 rating decision, the RO did not specify whether the condition was a congenital disease or defect. Nor does the medical evidence of record in November 1978 make such a distinction. However, the current statutory law that the presumption of soundness applies to a congenital disease but not to a congenital defect was implemented in 2009. See Quirin v. Shinseki, 22 Vet. App 390 (2009). Prior to this 2009 decision, the presumption of soundness did not attach to congenital conditions, and there was no statutory law distinguishing between a congenital disease and defect. As such, given the facts known and statutory laws and regulations in place in 1978, the presumption of soundness did not attach because the Veteran’s heart condition was determined to be congenital (constitutional). Presumption of Aggravation Given the above discussion which determines that the presumption of soundness did not attach to congenital conditions, there is no basis of error for the failure to address the presumption of aggravation as part of the presumption of soundness in the 1978 decision. Nonetheless, since the Veteran also asserts that the presumption of aggravation was not applied, and the RO did address aggravation in the decision, the Board will also discuss this argument. In the November 1978 rating decision, the RO stated that there was no aggravation but did not provide specific reasons and bases as to aggravation. The RO only stated that the condition was not aggravated by service. However, as noted, the failure to provide reasons and bases prior to 1990 is not a sufficient ground for CUE. Natali v. Principi, 375 F.3d 1375; Joyce v. Nicholson, 19 Vet. App. 46. Moreover, even it was, given the evidence of record as of November 1978, it is not undebatable whether an error occurred in the November 1978 rating decision as to the presumption of aggravation. In 1978, a preexisting injury was presumed to have been aggravated by active service where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. The Veteran has indicated that he did not have symptoms of a heart condition prior to service. In service, he reported nasal congestion, increased fatigability and heavy exertion. While the Veteran’s symptoms increased during service, the September 1978 examiner found that there was no aggravation of the pre-existing condition. Thus, there was medical evidence of record that determined that there was no aggravation beyond the normal progression of the disease during service. The RO clearly reviewed this evidence as it cites the service records in the decision. Thus, there is no basis for CUE on aggravation either. Further, even assuming arguendo, that an error occurred in the RO’s application/discussion of aggravation, which the Board does not find, the error is not undebatable. Undebatable means that reasonable minds could not differ. 38 C.F.R. § 20.1403(a). It is not undebatable as to whether the outcome of the November 1978 rating decision would have been manifestly changed. Given the lack of medical evidence, that the Veteran denied headache, chest pain or palpitations, and the determination of the September 1978 examiner and medical board finding that the condition had not been aggravated by service, it is not undebatable whether the RO would have met its burden and therefore still denied the claim for service connection. Additionally, even if the presumption of soundness had been rebutted, the Veteran would have had to establish a nexus between his current heart disability and the aggravation in service, and no evidence of such a nexus was present in 1978. As such, the criteria for CUE are not met on this basis either. In light of the evidence, the Board does not find CUE in the November 1978 rating decision, and the appeal is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel