Citation Nr: 1816714 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 15-00 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to December 29, 2009 for the grant of service connection for chronic bronchitis with cylindrical bronchiectasis and right upper lobe IGA deficiency, to include on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1974 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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. A claim seeking entitlement to service connection for a bronchial disability was received by VA on December 3, 1974, within one year of the Veteran's November 22, 1974 separation from active service. 2. A March 20, 1975 rating decision denied entitlement to service connection for a bronchial disability. 3. The March 20, 1975 rating decision, to the extent that it did not grant entitlement to service connection for a bronchial disability, was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment. CONCLUSIONS OF LAW 1. Clear and unmistakable error is shown in the March 20, 1975 rating decision to the extent that it did not grant service connection for a bronchial disability. 38 U.S.C. §§ 310, 311 (1976); 38 C.F.R. 3.303 (1976); 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for an effective date of November 23, 1974, but no earlier, for the grant of service connection for a bronchial disability are met. 38 C.F.R. §§ 3.102, 3.303, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for a bronchial disability was granted in a May 2012 rating decision. An effective date of December 29, 2009 was assigned. The Veteran timely submitted a notice of disagreement with the effective date assigned by this rating decision, and the current appeal was initiated. The Veteran contends that he is entitled to an effective date prior to December 29, 2009. He believes that the March 20, 1975 rating decision that initially denied service connection for his bronchial disability contains CUE, and that therefore the effective date of service connection should be from the date of his discharge, as the original December 3, 1974 claim was received within a year of separation from service. The Veteran notes that his entrance examination found him physically qualified to perform active duty at sea and/or foreign service, thus he should be presumed sound and his bronchial disability should be service-connected as incurred in service. In the alternative, he maintains that any pre-existing bronchial disability was aggravated during service. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2017). The Veteran's original claim for service connection for a bronchial disability was received on December 3, 1974, which was within one year of his discharge from service. See December 1974 VA Form 21-526 Veteran's Application for Compensation or Pension. In a rating decision dated March 20, 1975, the claim for entitlement to service connection for a bronchial disability was denied. The Veteran did not submit a notice of disagreement with this decision within a year of this decision or otherwise express intent to appeal it. Thus, the March 20, 1975 rating decision became final, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.105 (a), 3.156(b), 20.200 (2017). Once a rating decision is final, it may not be revised except on the basis of clear and unmistakable error. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.105 (a) (2017). The Veteran contends that March 20, 1975 rating decision contains CUE, that his original claim should have been granted, and that this would provide for an earlier effective date. CUE is a very specific and rare kind of error, of fact or 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. Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). To establish CUE the moving party must show that: (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 "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 in part Russell v. Principi, 3 Vet. App. 310 (1992)). The laws and regulations that govern the award of service connection are basically unchanged since March 1975. Then, as now, the laws and regulations state that service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 310 (1975); 38 C.F.R. § 3.303 (1975). The law also stated that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 311 (1975). See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The evidence available in March 1975 consisted of the Veteran's service treatment records, as discussed in the rating decision. See March 1975 Rating Decision. The entrance examination upon enlistment shows that the Veteran was fit for service; no lung condition was noted. Subsequently, the Veteran was treated numerous times throughout his naval career for complaints of wheezing and coughing, and sometimes coughing up blood. He was seen in the pulmonary clinic where he was treated for chronic bronchitis. The physician at that time recommended a medical board for discharge due to the condition. See August 11, 1974 Service Treatment Record (STR). He was seen again that the doctor noted a discharge summary from St. John's Hospital in Yonkers, New York from 1969 revealed that at age 12 the Veteran had a bronchial condition. See August 16, 1974 STR. Later that month, he presented to sick call on the ship and was diagnosed with agammaglobulinenmia, chronic bronchitis, and hemoptysis and was helicoptered to the Portsmouth Naval Hospital. He was admitted and treated there. See August 21-August 23, 1974 STRs. The Veteran underwent a physical examination in conjunction with a Medical Board evaluation. He came into the examination with a diagnosis of chronic bronchitis. The evaluators noted that he was well until 1969 when he was admitted to St. John's Riverside Hospital in Yonkers, New York for chronic cough. Evaluation at that time revealed chronic bronchitis and bronchograms showed minimal cylindrical bronchiectasis in the right upper lobe of the lung. He was discharged and put on antibiotics at that time and subsequently moved to Florida. Further evaluation by a different doctor at that time revealed a deficiency of IGA immunoglobins. The Veteran subsequently enlisted in the military and had no problems in boot camp or welding school. He began to have difficulty when assigned to ship that was characterized as a productive cough. The Medical Board determined that the conditions existed prior to enlistment, thus the Veteran did not meet the minimal requirements for enlistment. It was recommended that the Veteran be discharged from naval service. The Veteran was subsequently discharged on November 22, 1974. Service connection was denied on the basis of pre-existence of the bronchial condition. The decision further noted that the Veteran's condition was not aggravated during his relatively short period of active duty. The Board finds that the March 20, 1975 rating decision contains clear and unmistakable error. At this juncture, the Board notes that while the relevant case law is dated subsequent to the March 1975 rating decision, the wording of the relevant portions of the applicable laws are unchanged at the time of the Court's decisions. Therefore, the Court's interpretation of these laws demonstrates how these laws should have been properly applied. Wagner, 370 F.3d at 1094-96 (covering the legislative history of now section 1111 and describing how it has had the same meaning for many years). The Veteran's entrance examination failed to note the existence of a bronchial disability. When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 311 (1975); see Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. In this case, the March 1975 rating decision determined that the Veteran's bronchial disability clearly pre-existed service due to reports of treatment for chronic bronchitis, cylindrical bronchiectasis in the right upper lobe of the lung, and deficiency of IGA immunoglobins prior to service. The Board finds that the Veteran's STRs do not contain the private treatment records cited by the Medical Board which was the basis of the denial of entitlement to service connection. In fact, it appears that the Medical Board took this information directly from the August 16, 1974 STR that noted the record despite that it is not found in the file. Thus the Board finds that the evidence does not rise to the level of clear and unmistakable evidence needed to rebut the presumption of soundness. However, the Board finds that, even if the Veteran's bronchial disability did in fact pre-exist service, the March 1975 rating decision did not adequately address the issue of aggravation. In essence, the rating decision states that the Veteran's bronchial disability was not aggravated by service because he was in the military for such a short time. This was not correct application of 38 U.S.C. § 311 (1975), as affirmative evidence that was clear and unmistakable was required to show that the Veteran's bronchial disability was not aggravated during service. In fact, there was no such affirmative evidence, and the failure to use the correct legal standard led directly to the denial of the Veteran's claim. But for the RO's incorrect application of the presumption of soundness, and the resulting failure to apply the higher clear and unmistakable evidence standard to rebut a presumption of soundness of the bronchial disability at service entrance, the outcome of the March 20, 1975 rating decision would have been manifestly different; that is, service connection for a bronchial disability would have been granted. Accordingly, the Board finds that the March 20, 1975 rating decision that denied entitlement to service connection for bronchial disability was clearly and unmistakable erroneous, and that service connection for the bronchial disability should have been granted at that time. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a) (2012). Title 38 of the Code of Federal Regulations clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i) (2017). When CUE has been found, the effective date will be the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400 (k) (2017). ORDER An effective date of November 23, 1974 for the award of service connection for chronic bronchitis with cylindrical bronchiectasis and right upper lobe IGA deficiency based upon clear and unmistakable error is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs