Citation Nr: 1808085 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-29 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral leg disability, to include whether there was clear and unmistakable error (CUE) in a March 1976 rating decision that denied service connection for bilateral leg pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from May 1971 to November 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of January 2012 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). In July 2017, the Veteran testified before the undersigned at a video conference hearing. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. Service connection for bilateral leg disability was originally denied by a March 1976 rating decision. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 2. Subsequent to the March 1976 final denial, the Veteran filed to reopen his claim for bilateral leg disability several times. Most recently, the claim was denied by an April 2011 rating decision, which became final when the Veteran did not appeal the decision. 3. The evidence received subsequent to the April 2011 final denial of the claim for service connection for bilateral leg disability does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. 4. The correct facts, as they were known in March 1976, were accurately reported, and the statutory or regulatory provisions at the time were correctly applied. 5. At the time of the March 1976 rating decision, the evidence did not unmistakably show a bilateral leg disability. 6. The claim of CUE in the March 1976 rating decision amounts to a disagreement as to how the facts were weighed or evaluated in the 1976 decision. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral leg disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (b) (2017). 2. The criteria to find CUE in the March 1976 rating decision are not met. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent procedural regulations provide that nothing in 38 U.S.C. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C. § 5108. See 38 U.S.C. § 5103A (f). Reopening a claim for service connection that was previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. The United States Court of Appeals for Veterans Claims (Court) held that in determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). To determine whether new and material evidence has been received, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id. The Board is required to address the issue of new and material evidence in the first instance. If the Board determines that new and material evidence has not been received, the adjudication of the claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is not binding on the Board. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). A previous RO determination that was final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). Clear and unmistakable error 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 results would have been manifestly different but for the error. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Russell v. Principi, 3 Vet. App. 310 (1992), the United States Court of Appeals for Veterans Claims set forth a three-pronged test for determining when CUE is present in a prior rating decision. These are (1) either 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 that, 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. Id. at 313-14; Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell, 3 Vet. App. at 313-14); Bustos, 179 F.3d at 1380-81. The mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The error must be one that would have manifestly changed the outcome at the time that it was made and must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). VA is considered to have constructive notice of medical records in VA's possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Dunn v. West, 11 Vet. App. 462, 466 (1998) (Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records, specifically citing Bell). The Veteran originally filed a claim for service connection for a bilateral leg disability in December 1975. The claim was denied in a March 1976 rating decision, but became final when the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. The Veteran filed to reopen his claim several times subsequent to the March 1976 rating decision. Most recently, the RO declined to reopen the claim in an April 2011 rating decision. This decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. The evidence of record at the time of the prior final denial in April 2011 includes lay statements, the Veteran's service treatment records, service personnel records, and various post-service medical records. Regarding the bases for the prior denials, the March 1976 rating decision found that although the Veteran was discharged for bilateral leg pain, a leg disability was not shown by the evidence of record. The November 1997 and April 2011 rating decisions found that new and material evidence had not been submitted to reopen a claim for service connection for bilateral leg pain, as there was no evidence showing a current disability. Additionally, a December 2012 rating decision found that there was no clear and unmistakable error in the original March 1976 rating decision, as there was no medical evidence of a disability, and pain in the absence of a diagnosis is insufficient for VA purposes. The evidence added to the record since the last prior denial includes Board hearing testimony from the Veteran, service personnel records previously obtained by VA, as well as additional post-service VA treatment records dated from January 2014 to April 2017. The Board finds that the medical records submitted following the prior final denial in April 2011 do not relate to an unestablished fact necessary to substantiate the claim. Additionally, the Veteran's newly submitted August 1975 medical board recommended findings are cumulative and redundant of the evidence of record at the time of the prior final denial. In view of the foregoing, the Board finds that while the evidence added to the record is "new" to the extent it was not previously on file, it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. Thus, new and material evidence has not been received to reopen the previously denied claim in accord with 38 C.F.R. § 3.156 (a). Accordingly, the benefit sought on appeal must be denied. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). In a June 2012 statement, the Veteran alleged CUE as to the RO's March 1976 rating decision. The Board finds that CUE is not shown in the March 1976 rating decision. At the time of the March 1976 rating decision, the laws and regulations concerning the issue of entitlement to service connection for psychiatric disorders were essentially the same as they are now. Service connection could be established for disability resulting from injury suffered or disease contracted during service, or for aggravation of a preexisting injury or disease. 38 C.F.R. § 3.303 (1975). Regulations also provided that service connection could be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, established that the disease was incurred in service. Id. The medical evidence of record at the time of the March 1976 rating decision demonstrated that the Veteran had been discharged due to bilateral leg pain. While there were various diagnoses of periostitis/tendonitis during service, the record did not reflect a current disability for VA purposes at the time of the filing of the claim. The March 1976 rating decision acknowledged the relevant facts and considered the appropriate legal criteria for service connection claims. The Veteran's arguments are essentially a disagreement as to how the facts were weighed or evaluated, which is not a basis for finding CUE. See Damrel, 6 Vet. App. at 646. As such, the Board finds that CUE is not shown in the March 1976 rating decision. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral leg disability. The appeal is denied. As the March 22, 1976 rating decision, which denied entitlement to service connection for bilateral leg pain, does not contain CUE, the appeal is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs