Citation Nr: 20028022 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 18-30 925 DATE: April 21, 2020 ORDER Entitlement to revision of the April 1978 Regional Office (RO) decision on the basis of clear and unmistakable error (CUE) to reflect the grant of service connection for flat feet is denied. Entitlement to revision of the March 1997 RO decision on the basis of CUE to reflect the reopening of entitlement to service connection for pes planus and the grant of service connection for pes planus is denied. Entitlement to revision of the October 2002 RO decision on the basis of CUE to reflect the reopening of entitlement to service connection for pes planus and the grant of service connection for pes planus is dismissed. Effective December 16, 1977, service connection for bilateral pes planus and plantar fasciitis with bone spurs, degenerative joint disease, and metatarsalgia is granted. The Veteran’s application to reopen a previously denied claim of entitlement to service connection for a back disability is granted. Service connection for a back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar neuropathy, is granted. FINDINGS OF FACT 1. The April 1978 and March 1997 rating decisions that denied service connection for pes planus became final because the Veteran did not perfect his appeal. 2. The Veteran perfected an appeal of the October 2002 rating decision to the Board. 3. The correct facts, as known at the time, were before the VA adjudicators in April 1978 and March 1997 and the statutory and regulatory provisions extant at the time were correctly applied. 4. Following separation from service on December 15, 1977, the April 1978 rating decision denied the Veteran’s December 23, 1977, service connection claim for pes planus. 5. In April 2018, the RO granted service connection for bilateral pes planus and plantar fasciitis with bone spurs, degenerative joint disease, and metatarsalgia based in part on service department records received in October 2008. 6. The March 1997 rating decision that denied service connection for a back disability became final because the Veteran did not perfect his appeal. 7. The additional evidence since the RO’s decision in March 1997 is not redundant or cumulative evidence previously considered and it relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability. 8. The Veteran’s current back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar neuropathy, is proximately due to or the result of his service-connected foot disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of the April 1978 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). 2. The criteria for entitlement to revision of the March 1997 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). 3. The motion to revise the October 2002 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 is dismissed. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), 20.1104. 4. The criteria for an effective date of December 16, 1977, for the grant of service connection for bilateral pes planus and plantar fasciitis with bone spurs, degenerative joint disease, and metatarsalgia have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400(r). 5. The March 1997 rating decision that denied the Veteran’s claim of service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. New and material evidence has been presented to reopen a claim of entitlement to service connection a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 26, 1977, to December 15, 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) RO. In January 2017, the Board remanded the issues regarding CUE and a back disability for issuance of a Statement of the Case. 1. Entitlement to revision of the April 1978 RO decision on the basis of CUE to reflect the grant of service connection for flat feet is denied. 2. Entitlement to revision of the March 1997 RO decision on the basis of CUE to reflect the reopening of entitlement to service connection for pes planus and the grant of service connection for pes planus is denied. 3. Entitlement to revision of the October 2002 RO decision on the basis of CUE to reflect the reopening of entitlement to service connection for pes planus and the grant of service connection for pes planus is dismissed. The Veteran asserts that there is CUE in the April 1978 rating decision that denied service connection for flat feet and the March 1997 and October 2002 rating decisions that declined to reopen his previously denied claim of service connection for pes planus. See Board hearing (March 2006). A previous RO determination that is 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). The Veteran submitted timely Notices of Disagreement challenging the April 1978 and March 1997 rating decisions but did not perfect his appeal. Thus, the April 1978 and March 1997 rating decisions became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. As to the October 2002 rating decision, which declined to reopen the issue of entitlement to service connection for pes planus, the Veteran perfect his appeal to the Board, which ultimately reopened the claim in a June 2006 decision. In January 2017, the Board remanded the claim and the RO granted service connection for pes planus in April 2018. Here, the October 2002 rating decision is not subject to attack on the basis of CUE as it was effectively appealed to the Board. See 38 C.F.R. § 20.1104. Accordingly, the claim of entitlement to revision of the October 2002 RO decision on the basis of CUE to reflect the reopening of entitlement to service connection for pes planus and the grant of service connection for pes planus is dismissed. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). 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); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. The Veteran contends that the April 1978 and March 1997 rating decisions contain CUE as the November 1977 service medical records, which discuss his pes planus, were not of record at the time of the decisions. See Board hearing, 6-7 (March 2006). Essentially, the Veteran contends that the RO failed to fully discharge the duty to assist in obtaining outstanding service treatment records. Nevertheless, a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a CUE be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. As the Veteran’s CUE allegation is predicated solely upon the RO’s failure to obtain outstanding records, the Board finds that the April 1978 and March 1997 rating decisions were not clearly and unmistakably erroneous and no revision is warranted. 4. Effective December 16, 1977, service connection for bilateral pes planus and plantar fasciitis with bone spurs, degenerative joint disease, and metatarsalgia is granted. Historically, following separation from service on December 15, 1977, the Veteran’s initial December 23, 1977, claim of entitlement to service connection for pes planus was denied in an April 1978 rating decision on the basis that his service treatment records were silent as to the diagnosis or treatment of pes planus. See also Rating decisions (March 1997, October 2002). In January 2017, the Board remanded the claim and in an April 2018 rating decision, the RO granted service connection for pes planus, effective July 29, 2002. Critically, in October 2008, VA received service department records showing that the Veteran received treatment for pes planus in service. These service department records existed and had not been associated with the claims file when VA first decided the claim in April 1978. The Board finds that these records are relevant to the Veteran’s claim because they affirmatively show an in-service foot disability, and thus, relate to one of the elements of the claim that was in issue at the time the April 1978 rating decision was promulgated. See 38 C.F.R. § 3.156(c)(1); see also Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2017). Furthermore, the Board finds that VA could have obtained the service department records when it decided the claim in April 1978 because the Veteran provided sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. See 38 C.F.R. § 3.156(c)(2). As such, the Veteran’s claim of entitlement to an effective date prior to July 29, 2002, for the grant of service connection for pes planus turns on whether the April 2018 rating decision was made based all or in part on the service department records received in October 2008. See 38 C.F.R. § 3.156(c)(3). The Board finds that the April 2018 rating decision was based in part on the service department records, which as the United States Court of Appeals for Veterans Claims (Court) observed in a September 2013 memorandum decision, were received in October 2008. Indeed, the decision cites the records in the context of the in-service element of service connection, noting that they show treatment for pes planus in December 1977. Critically, these records contained the only documentation of in-service treatment for pes planus and the Veteran’s claim was previously denied for lack of in-service diagnosis or treatment. The Board further finds that evidence sufficiently demonstrates that the Veteran’s pes planus had its onset in service. Indeed, the Veteran was treated for pes planus in service and has continuously prosecuted his claim since service. Having determined that entitlement to service connection arose in service, service connection for pes planus is warranted from December 16, 1977, as the Veteran submitted his initial December 23, 1977, claim within one year after separation from service on December 15, 1977. See 38 C.F.R. §§ 3.156(c)(3); 3.400. 5. The previously denied claim of entitlement to service connection for a back disability is reopened. The Veteran previously submitted a claim of entitlement to service connection for a back disability, which was denied in a March 1997 rating decision for lack of an in-service injury and current disability. The March 1997 rating decision became final because while he submitted a Notice of Disagreement, he did not perfect his appeal. In connection with the Veteran’s claim to reopen, VA received current diagnoses of degenerative disc disease of the lumbar spine and lumbar neuropathy and a medical opinion relating the Veteran’s current back disability to his service-connected foot disabilities. See VA examination (October 2018); Private medical opinion (September 2013). Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 6. Service connection for a back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar neuropathy, is granted. Service connection is warranted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. It is undisputed that the Veteran has a current back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar neuropathy, and that he is service-connected for bilateral pes planus and plantar fasciitis with bone spurs, degenerative joint disease, and metatarsalgia, rated 50 percent disabling, and hallux valgus of the left and right feet, each rated 10 percent disabling, and tarsal tunnel syndrome of the left and right feet, each rated 10 percent disabling. In October 2018, a VA examiner opined that the Veteran’s service-connected foot degenerative spine disability is predominately related to his age. The examiner further opined that since the condition was diagnosed in 2006, more than 30 years after his foot disability began, and he has a lifetime history of working as an aircraft mechanic, the Veteran’s age and occupation posed a much greater risk for development of degenerative disc disease of the spine than any other orthopedic conditions involving the lower extremities, including those of the feet. In March 2006, a private clinician opined that the Veteran’s current back disability is more likely than not a direct result his service-connected foot disabilities. The clinician explained that the Veteran’s severe foot disabilities cause him to alter his gait, and that altered gait likely caused the current back disability. The Board finds that his current back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar neuropathy, is proximately due to or the result of his service-connected foot disabilities. In this regard, the March 2006 and October 2018 medical opinions agree that the Veteran’s service-connected foot disabilities resulted in altered gait and that such was a factor in the cause of his current back disability. To the extent that the March 2006 and October 2018 clinicians disagree on Veteran’s foot disabilities contributed to his current back disability, the Board finds that the opinions are in relative equipoise. After resolving any doubt in the Veteran’s favor, the Board concludes that the Veteran’s back disability is proximately due to or the result of his service-connected foot disabilities. As such, service connection for a back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar neuropathy, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.