Citation Nr: 19116003 Decision Date: 12/09/19 Archive Date: 12/09/19 DOCKET NO. 18-43 001 DATE: December 9, 2019 ORDER The motion to reverse or revise the RO’s July 23, 1968, decision which denied entitlement to service connection for residuals of fracture at L-1 with discogenic disease D-12 to L-1, on the grounds of clear and unmistakable error (CUE), is denied. FINDING OF FACT 1. The Veteran’s claim of service connection for a back injury was denied in a July 23, 1968, rating decision that became final because he did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in July 23, 1968. 3. The RO did not discuss the presumption of soundness under 38 U.S.C. § 311 (1968) in its 1968 decision, but this error was not outcome determinative and the outcome of the claim of entitlement to service connection for residuals of fracture at L-1 with discogenic disease D-12 to L-1 would not have been manifestly different but for the RO’s misapplication of the law. CONCLUSION OF LAW The criteria for entitlement to revision of a July 23, 1968, rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party served on active duty in the United States Army from March 1964 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) following the receipt of the moving party’s December 18, 2014, motion alleging CUE in a July 23, 1968, RO decision. The motion to reverse or revise the RO’s July 23, 1968, decision which denied entitlement to service connection for residuals of fracture at L-1 with discogenic disease D-12 to L-1, on the grounds of CUE, is denied. CUE 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has established a three-pronged test, each of which must be met before CUE is established: either (1) 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)). In order to constitute CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). At the time of the July 1968 RO decision, the law provided that 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. § 311 (1968). The provisions of 38 U.S.C. § 311 (the precursor to current 38 U.S.C. § 1111) were implemented by 38 C.F.R. § 3.304(b) (1968), which provided that a veteran was 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 (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto. Thus, in conducting its presumption of soundness analysis under 3.304(b) (1968), the RO was not required to find clear and unmistakable evidence that the disability was not aggravated by service. The RO notes that in a precedent opinion that was issued many years after the RO decision in question, the VA General Counsel concluded that 38 C.F.R. § 3.304(b) conflicted with 38 U.S.C. § 1111, and that the regulation was therefore invalid. See VAOPGCPREC 3-2003 (2003). The United States Court of Appeals for the Federal Circuit (Federal Circuit) adopted the General Counsel’s position. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, judicial decisions that formulate new interpretations of the law subsequent to a VA decision cannot be the basis of a valid CUE claim. Berger v. Brown, 10 Vet. App. 166, 170 (1997). Moreover, VA General Counsel has held that the RO’s application of a subsequently-invalidated regulation, i.e., 38 C.F.R. 3.304(b) (1968), in a decision does not constitute “obvious error” or provide a basis for reconsideration of the decision. VAOPGCPREC 25-95, 61 Fed. Reg. 10065 (1996). In any event, in Jordan v. Nicholson, the Federal Circuit held that its holding in Wagner does not apply retroactively to final decisions where the error alleged is failure to comply with 38 U.S.C. § 1111. See 401 F.3d 1296, 1298-99 (Fed. Cir. 2005). More recently, in George v. Wilkie, the Court held that Federal Circuit’s holding in Wagner does not apply retroactively to final decisions regardless of whether the error alleged is failure to comply with either 38 U.S.C. § 1111 or 38 C.F.R. § 3.304. See No. 16-2174, 2019 U.S. App. Vet. Claims LEXIS 19 (Vet. App. Jan. 4, 2019). Thus, the failure of the RO to find that the moving party’s condition was not clearly and unmistakably aggravated by service as part of its presumption of soundness analysis cannot be considered to be CUE. The evidence of record at the time of the RO’s July 1968 decision included service treatment records, which show that the Veteran’s October 1963 entrance examination was normal other than for a vision defect. The Veteran’s October 1963 report of medical history form shows that the Veteran reported a back sprain in 1958. On May 19, 1964, the Veteran presented with a three-year history of back pain. A May 20, 1964, x-ray report shows “irregularity on the anterior superior portion of the 1st lumbar vertebra, which could possibly represent an old or an acute fracture in this area.” Service treatment records also note that the Veteran incurred contusions and abrasions of the chest and face during a fight and motor vehicle accident on September 26, 1965; however, besides the aforementioned May 1964 records, service treatment records are silent as to back problems. Upon separation from service in December 1965, the Veteran denied any swollen or painful joints or arthritis clinical evaluation of his spine was normal. In March 1968, the Veteran submitted a claim of service connection for a back injury. On VA examination in June 1968, the Veteran reported back pain and loss of grip strength. An orthopedic specialist determined that a contemporaneous x-ray report showed possible L-1 compression fracture from 1958 and discogenic disease at D-12 and L-1. In its July 1968 decision, the RO denied service connection for residuals of fracture at L-1 with discogenic disease at D12-L1. The RO reasoned that the L1 fracture exsisted prior to entry into service and that there was no evidence of aggravation of any back condition during the Veteran’s active duty. The Veteran asserts CUE in the July 1968 rating decision to the extent that the correct facts were not before adjudicators. Specifically, the Veteran contends that adjudicators did not consider the June 1968 VA orthopedic examination, as such would have compelled the award of service connection. See Statement (September 6, 2017). The Veteran also asserts that ne never had a back injury prior to entering service. See CUE motion (December 18, 2014). In support of his motion, the Veteran submitted a May 2016 medical opinion from Dr. Craig N. Bash, who reported that VA adjudicators erroneously overlooked the June 1968 orthopedic evaluation that shows diminished right ankle jerk. The Board finds that the correct facts, as known at the time, were before the VA adjudicators in July 23, 1968. The Veteran’s argument that he never had a back injury prior to service is undercut by his report of medical history, wherein he reported back sprain in 1958, and the May 1964 service treatment record, wherein he reported that his back pain preexisted service. To the extent that he disagrees with how the RO weighted this evidence, his disagreement does not rise to the level of CUE. See, e.g., Russell, 3 Vet. App. 310. Additionally, the Veteran’s assertion that VA adjudicators did not consider the results of the June 1968 VA orthopedic examination report fails as it is clear from the face of the decision that the examination report was reviewed. Indeed, the July 1968 rating decision expressly referenced the June 1968 VA orthopedic examination report and the findings discussed therein and denied service connection for the disability diagnosed by the orthopedic specialist that conducted the VA examination, that is, residuals of fracture at L-1 with discogenic disease at D12-L1. The Board finds that the provisions pertaining to the presumption of soundness (i.e., 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968)) were not discussed in the July 1968 RO decision. Despite the fact that the Veteran’s October 1963 entrance examination was normal and that the presumption of soundness was for application, the RO did not cite the applicable presumption of soundness provisions, did not set forth the statutory or regulatory language pertaining to the presumption of soundness, and did not otherwise explain either how there was clear and unmistakable evidence that the moving party’s claimed back disability existed prior to service or how there was clear and unmistakable evidence that any such pre-existing disability was not aggravated in service. Nevertheless, despite the fact that the RO did not discuss the application of 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968), this error was not outcome determinative and the inclusion of such a discussion would not have resulted in a manifestly different outcome to which reasonable minds could not differ. In this regard, although clinical evaluation of the Veteran’s spine was normal upon entrance into service, all in-service references to the Veteran’s back pain indicate that it existed prior to service. Specifically, upon entrance into service, the Veteran reported a history of back sprain in 1958 and when the Veteran sought treatment for his back on May 19, 1964, he gave a history of back pain for the past three years. As the July 1968 rating panel cited this evidence in its decision and determined that the Veteran’s L-1 fracture existed prior to service and that there is “no evidence of aggravation of any back condition” during the Veteran’s active duty, it is clear that the adjudicators weighed and evaluated the evidence then of record. Thus, it cannot be said that discussion of 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968) would have been outcome determinative. Furthermore, although the July 1968 rating decision did not specifically discuss application of 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968), 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, 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”). Consequently, in order to establish CUE in a rating decision prior to February 1990 based on the failure to consider a particular fact or law, “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.” Evans, 27 Vet. App. at 189 (quoting Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005)). Where, as here, the decision states that “fracture at L-1 is held to have existed prior to entry into service. . . . [and] [t]here is no evidence of aggravation of any back condition during the [Veteran’s] active duty,” the RO appears to have correctly applied 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968). Conversely, it cannot be said that it is clear from the face of the decision that the RO did not consider 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968). Additionally, besides the June 1968 VA orthopedic examination report, which, as discussed above, the Board has determined to have been before the RO, the Veteran has not claimed that any other evidence was missing from the claims file at the time of the July 1968 decision. Thus, even though the RO erred by not discussing the application of 38 U.S.C. § 311 (1968) and 38 C.F.R. § 3.304(b) (1968) in its decision, this error was not outcome determinative because the RO nonetheless considered all relevant evidence of record at the time of its July 1968 decision. Moreover, to the extent the Veteran relies on the May 2016 report prepared by Dr. Bash, the determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the [date] rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). In sum, the moving party has not presented evidence of CUE in the RO’s July 23, 1968, decision that denied entitlement to service connection for residuals of fracture at L-1 with discogenic disease D-12 to L-1 with discogenic disease. Therefore, the motion to reverse or revise that decision must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel