Citation Nr: 1807839 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-12 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Whether there was clear and unmistakable error (CUE) in a March 1982 rating decision that denied service connection for a low back disability. REPRESENTATION Appellant represented by: Leslie Gaines, Attorney ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Army from July 1960 to November 1981. This appeal to the Board of Veterans' Appeals (Board) is from May 2010 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had several other issues on appeal, but in March 2016 his attorney withdrew all of the appeals except the ones involving CUE in the March 1982 rating decision and the denial of service connection for a heart disability. See Email Correspondence and Notification Letter received in March 2016. The Veteran requested a Board hearing, but this request was withdrawn in December 2017. See Third Party Correspondence received in December 2017. The Board notes that the Veteran's attorney has observed that many of the dates in the Veterans Benefits Management System (VBMS) are wrong in so far as they do not reflect the day RO received the document and that some documents are labeled incorrectly. Although this is correct, it does not affect the adjudication of the appeal and for consistency purposes the Board will refer to the dates and document titles as they appear in VBMS. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's heart disability is related to his military service. 2. The March 1982 rating decision was reasonably supported by the evidence then of record, as well as existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The criteria are met for service connection for a heart disability. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The RO's rating decision of March 1982 did not involve CUE. 38 U.S.C. §§ 5112, 7104 (2012); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In September 2017, the Veteran's attorney made a request that the record to be held open for 90 days to allow for additional development of the claims. Third Party Correspondence received in September 2017. Although no formal response was given, the Board finds that there is no prejudice to the Veteran in proceeding with the claims. Notably, more than 90 days have passed since the September 2017 request and additional argument was received from the Veteran's attorney in December 2017. She did not request that the record continue to be held open at that time. Moreover, determinations regarding CUE are based on the facts of record at the time of the decision challenged; therefore, further factual development would not be appropriate. 38 C.F.R. §§ 20.1411 (c), (d); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). Furthermore, the decision below is a full grant of benefits with regard to the Veteran's heart disability, so no additional development is needed. II. Legal Criteria and Analysis Service Connection The Veteran seeks service connection for a heart disability on the basis of exposure to herbicide agents in Vietnam. Service connection may be granted if the evidence demonstrates that a current disability is present as a result of an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection, the evidence 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 or injury incurred or aggravated during service, the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The relationship between the disability and the in-service event or incurrence is a medical question, and the Board is bound by the medical evidence on record and may not make such findings on its own. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Certain medical conditions, such as ischemic heart disease, are presumed to be connected to service based upon herbicide agent exposure. 38 C.F.R. § 3.309(e) (2017). The list of heart disorders in this section that qualify as ischemic heart disease is not all inclusive. Id. Exposure to herbicide agents is presumed based upon service within the Republic of Vietnam and other specified areas during particular time periods. 38 U.S.C. § 3.307(a)(6) (2017). The Veteran's service personnel records show he served in the Republic of Vietnam during the Vietnam era. Thus, his exposure to herbicide agents is presumed. His postservice treatment records show he was noted to have a heart murmur in January 1991. See page 27 of Medical Treatment record - Government Facility received in December 2002. A myocardial perfusion scan performed in January 2011 was also noted to abnormal, revealing reversible ischemia of the inferior wall. He also had possible left ventricular diastolic dysfunction. See pages 20 and 109 of Medical Treatment record - Non-Government Facility received in January 2012. On March 2015 VA examination, the physician stated that the Veteran had a cardiac conduction defect and that this condition qualified within the generally accepted medical definition of ischemic heart disease. In light of this evidence, the Veteran is shown to have a heart disorder that qualifies as ischemic heart disease and as a result service connection is warranted on a presumptive basis due to his presumed exposure to herbicide agents in Vietnam. CUE The Veteran and his attorney contend there was CUE in a March 1982 rating decision that denied service connection for a low back disability. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. A claim of CUE is a form of collateral attack on an otherwise final rating decision by a VA regional office. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed.Cir.2000). For CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the outcome would have been manifestly different if the error had not been made; and (3) the error was 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). In other words, the error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE consists of "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. at 313." It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In short, a disagreement with how VA evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Moreover, a failure on the part of the RO to fulfill its statutory duty to assist a veteran with the development of facts pertinent to a claim does not constitute CUE. See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As a threshold matter, the Board finds that the arguments advanced by the Veteran's attorney allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). Therefore, the Board will adjudicate the merits of this claim. The Veteran's attorney identified several perceived errors in the March 1982 rating decision that essentially center around incorrect facts being considered and misapplication of the law. She asserts that the RO misstated the facts concerning the evidence that existed and that were part of the claims file when the decision was issued in March 1982. The evidence believed to be of record at that time includes service treatment records that show the Veteran was in a helicopter crash in January 1970 and that he had a strained lumbar and pain as a result of the accident; January 1970 X-rays of the lumbar that were negative and did not state the Veteran had a diagnosis of scoliosis; treatment records showing that the Veteran was referred to physical therapy for what was diagnosed as "low back syndrome," and that in the same month of the Veteran's retirement he continued to complain of pain in the small of his back. She also noted that a VA Form 21-526e dated in December 1981 informed VA that the Veteran's back condition began in January 1970 and that he had been treated at hospitals in Vietnam for this condition. See Third Party Correspondence received in December 2017. The Veteran's attorney also asserts that the RO did not correctly apply the provisions of 38 C.F.R. §§ 3.303 and 3.304. Pursuant to 38 C.F.R.§ 3.304(d) (1981), satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even if there is no official record of such incurrence. In this regard, she pointed out that the rating decision stated there was no evidence of injury in service and noted that this was one of the reasons the claim was denied. The attorney stated that the RO's finding amounted to CUE because the record at that time showed he was a combat Veteran seeking service connection for an injury caused by a January 1970 accident and, based on his statements, he was entitled to the presumption of service connection under 38 C.F.R. § 3.304(d). She argued that his back injury was discussed in service as a lumbar strain and "low back syndrome" was incurred during combat and was the result of a combat accident. She contended that a manifestly different outcome would have occurred in 1982 but for the CUE in failing to apply the combat provisions of 38 C.F.R. § 3.304(d). The attorney also contends that the RO failed to correctly comply with 38 C.F.R. § 3.303(a) (1981) and misstated the facts about the evidence of record. This provision provides that "[d]eterminations as to service connection [are to] be based on review of the entire evidence of record." She stated that the RO failed to review the entire evidence even though favorable evidence to support the Veteran's claim was in the record before VA at the time of the March 1982 decision. She also points to the fact that the RO stated the X-rays were negative and still denied the claim in part because of a diagnosis of congenital scoliosis, and also because it found that there was no lumbar disability in service. In light of this, the attorney contends it was CUE to rely on a diagnosis of scoliosis when the X-rays were negative and the diagnosis clearly did not exist. Finally, she asserts that 38 C.F.R. § 3.303(a) was violated because the March 1982 rating decision stated there was no chronic disability in service when the service treatment records proved a chronic disability in service. It is her contention that had the RO reviewed the entire record it would have proved that the Veteran had a chronic lumbar disability in service and that the current diagnoses were the lumbar strain and low back syndrome diagnosed in service. The attorney concludes that but for these errors a manifestly different outcome would have occurred and the Veteran would have been awarded service connection for a lumbar disability. See Third Party Correspondence received in December 2017. The Board finds that while there were some errors in the March 1982 rating decision, none rise to the level of CUE since, absent the errors, the outcome would not have been manifestly differently. Notably, "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, clear and unmistakable." Fugo, 6 Vet. App. at 43-44. The misstatement or omission of facts in the rating decision is not equivalent to the correct facts not being before the adjudicator. Although the decision misstated that there was no evidence of an injury in service and did not note the treatment records that documented the injury and complaints, it is not undebatable that the correct facts were not before the adjudicator in March 1982. Even the attorney's contention that the factual errors occurred because the records were not reviewed in their entirety is based on the premise that all of the records were before the RO at the time the claim was initially denied. See page 9 of Third Party Correspondence received in December 2017. Instead, her primary objection is that the entire record was not reviewed. Thus, the record does not establish that the correct facts were not before the adjudicator in March 1982. To the extent that the RO may have incorrectly applied the statutory or regulatory provisions extant at the time of the March 1982, the Board finds that such error was not outcome determinative and proper application would not have resulted in a manifestly different outcome. As noted, the attorney contends that the RO misapplied 38 C.F.R. § 3.304 d) (1981) by not applying a presumption for service connection based on the Veteran's combat service injury. The Board finds that the attorney's interpretation of the regulation is incorrect. The language of 38 C.F.R. § 3.304(d) in 1981 is essentially the same as it exists today. Thus, the meaning of this section has not changed. In general, 38 C.F.R. § 3.304(d) (1981) provides the framework for establishing a presumption for service incurrence of an injury or disease in a combat situation during service and works in conjunction with 38 U.S.C. § 354(b), which has since been renumbered to 38 U.S.C. § 1154(b). Neither provision is intended to create a presumption for service connection; they only act to aid in establishing evidence of a disease or injury in service during combat for which a Veteran seeks service connection. As such, they do not bypass the requirements of establishing evidence of a current disability and whether there is a nexus to service. If the regulation was to be interpreted as the attorney suggests, then to establish service connection on a presumptive basis a Veteran would only ever have to show that a disease or injury was incurred during service while in combat. This interpretation is flawed since some diseases and injuries may result in full recovery and it is inconsistent with the fundamental concept that service connection may only be established for current disabilities. Since the March 1982 rating decision denied the existence of an in-service injury during combat in service, there was no reason to apply 38 C.F.R. § 3.304(d). Even if the failure to apply 38 C.F.R. § 3.304(d) was considered an error, however, it would not rise to the level of CUE. This is because even if the RO had recognized that the Veteran had a back injury in service it would not have changed the outcome of the decision because there was still no evidence of a current disability. As noted in the rating decision, the Veteran did not report for his VA examination and as a result there was no current evidence of the claimed disability. The basic requirement of a current disability to establish service connection has not changed. See 38 C.F.R. § 3.303 (1981). As to the attorney's assertion that the RO misapplied 38 C.F.R. § 3.303(a) by failing to consider all of the evidence of record, the Board acknowledges error in this regard, but finds that the error does not rise to the level of CUE. The March 1982 rating decision does not identify the Veteran as a combat Veteran. The only service treatment records related to the low back disability that were noted were a negative X-ray report of the lumbar spine and a diagnosis of congenital scoliosis. The decision noted there was no evidence of injury. The March 1982 rating decision is incorrect in stating there is no evidence of an injury. The Veteran's service treatment records show that in January 1970 he suffered a fall involving a helicopter that resulted in a back injury and back strain. The records also show that he was seen in February 1970 and was referred for physical therapy for low back syndrome. A March 1970 service treatment record shows that the Veteran reported having lumbar pain after a fall from a helicopter. See pages 8, 9, 11 and 16 of STRs received in May 2004. Thus, the RO misstated the facts in reporting there was no evidence of an injury. Regarding the X-rays, the RO was correct in stating that the X-rays of the lumbar were negative. The diagnosis of congenital scoliosis is also noted in the service treatment records. There was no outcome determinative error in reporting scoliosis even though it was not ultimately found on X-rays since the claim was also denied on the basis that there was no evidence of a chronic disability in service. See pages 8 and 11 of STRs received in May 2004. Even if all of the records were accurately reported and considered the outcome of the decision would not have changed since the record did not contain evidence of a current disability. The attorney also contends that an examination was not necessary to grant the claim since evidence of chronicity of a lumbar disability and a diagnosis in service were sufficient to grant the claim. She relies, in part, on evidence in November 1981, the same month the Veteran separated from service, to support evidence of an ongoing disability. However, the attorney did not offer a complete picture of the medical record. While the November 1981 treatment record notes complaints of low back pain, the Veteran described it as spanning from the base of his skull to the small of his back. He also complained of increased temperatures as high as 103 degrees, shaky chills, and headaches. See pages 18 and 19 of STR received in May 2004. Given the full scope of his complaints, the evidence does not clearly show that his low back complaints in November 1981 were related to an ongoing low back problem as opposed to part of a larger array of symptoms unrelated to the back injury. 38 C.F.R. § 3.303(b) (1981) provides that with any chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes." It adds that for the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. There is no error in the March 1982 rating decision finding that a chronic lumbar disability is not shown in service. The Veteran's service treatment records show that he had an injury in January 1970 and complaints were reported a few times over the courses of the next two months. See pages 8, 9, and 16 of STR. Although back strain was noted in January 1970 and there was an impression of low back syndrome in February 1970 neither was characterized as "chronic". As there were only a few brief entries from January to March 1970 related to his low back complaints, the evidence does not clearly show that there was sufficient observation to reach the conclusion that the back disorder was chronic. Furthermore, service medical examinations and history reports in the subsequent years were negative for low back complaints or findings. See pages 4, 24 to 27, 69, and 70 of STR. Thus, even if the RO had considered all of the available evidence in March 1982, it would not have unquestionably led to the conclusion that the back strain or low back syndrome noted in 1970 was a chronic disorder in service. The attorney's assertion that the claim itself is proof that the Veteran had back problems beginning in January 1970 and that he also had back problems after service when he filed his claim, suggests service connection should have been granted on the basis of continuity of symptomatology. However, his complaints in December 1981 do not undoubtedly establish that his post service complaints were manifestations of the back strain or low back syndrome noted in 1970. With regard to the Veteran's own assertions of CUE, he alleged there was error because RO adjudicated scoliosis even though it was not specifically raised. See VA 21-4138 received in May 2010. This assertion was not pled with the requisite specificity requirements to be considered. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). In short, there was no error which was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome in March 1982. Thus, revision of the March 1982 rating decision on the grounds of CUE is not warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for a heart disability is granted. The claim for CUE in the March 1982 rating decision that denied service connection for a low back disability is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs