Citation Nr: 20042814 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 20-05 277 DATE: June 24, 2020 ORDER As the December 12, 1996, rating decision contained clear and unmistakable error (CUE) in the denial of service connection for a back disorder, the December 12, 1996 rating decision is revised to reflect a grant of service connection for a back disorder effective October 10, 1996. FINDING OF FACT 1. The Veteran’s claim of service connection for a back disability was denied in a December 12, 1996, rating decision that became final because he did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. 2. The December 12, 1996, rating decision denying service connection for a back disorder was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual and legal error, the outcome would have been manifestly different, namely, service connection for degenerative changes of thoracic and lumbar spine would have been assigned from October 10, 1996, the day the claim for service connection for a back disability was received. CONCLUSION OF LAW The criteria for revision of the December 12, 1996 rating decision denying service connection for a back disability on the basis it contains CUE are met; and the decision is revised to grant service connection for thoracic and lumbosacral back disabilities effective October 10, 1996. 38 U.S.C. §§ 1131, 1132 (1999), 5109A (2012); 38 C.F.R. §§ 3.303 and 3.304 (1996), 3.102 (1996 and 2019), 3.104, 3.105(a), 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Air Force on active duty from December 1959 to July 1963. This appeal arises before the Board of Veterans Appeals (Board) from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). CUE VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. A previous RO determination that is final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 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. 38 C.F.R. § 3.105(a). 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 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. If CUE is found, 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 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (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 (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 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. The Veteran, through his attorney, argues that the RO improperly applied the presumption of soundness in the December 1996 rating decision such that the RO denied service connection based on the finding that the Veteran had a pre-existing back injury which had not been aggravated as the result of active service. The Veteran points to his entrance examination dated in 1959, which shows the Veteran’s spine was found to be normal as evidence that the presumption of soundness ought to have been attached. The Veteran argues that but for that error, the claim for service connection for a back disability would have been granted. The Board concurs. As a threshold matter, the Board finds that the argument advanced by the Veteran alleges CUE with the requisite specificity. The Board will therefore adjudicate the merits of his claim. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). At the time of the December 1996 rating decision, the claims file included the May 1993 Application for Compensation or Pension, Application for Compensation or Pension (VA Form 21-526), in which the Veteran identified back disability as one of the disabilities for which he had claimed pension, the October 1996 informal claim in which he first claimed service connection for a back disability (although he phrased the claim as one to reopen), the November 1996 VA examination report, available service personnel records and service treatment records (STRs), VA inpatient and outpatient treatment records, statements by the Veteran of injuries on Anderson Air Force Base (AFB) in Guam (including during a typhoon). The Veteran’s allegation of CUE centers primarily upon whether the RO correctly applied the presumption of soundness provisions under 38 U.S.C. §§ 1111, 1132. The statute provides that the 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 clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b). The Federal Circuit clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness under 38 U.S.C. § 1111, 1132 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. While the decision in Wagner did not exist when the December 1996 rating decision was issued, the Wagner decision, as explained by the Federal Circuit, was a statement of what the statute creating the presumption of soundness has meant since its enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction). In sum, when no preexisting condition is noted upon entry into service, a Veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. If that burden is met, then the Veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness, the claim is one for direct service connection. Wagner, 370 F.3d 1089. Clear and unmistakable evidence is an onerous evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be undebatable. Cotant v. Principi, 17, Vet. App. 116 (2003). The 1959 reports of entrance examination and medical history on entrance to service do not show any report of previous injury or back condition or findings of abnormality, defect, or disease regarding the Veteran’s back. Rather, his back was found to be normal. Subsequently, STRs show the Veteran was treated during active service for back pain in 1962. He described pain on lifting and bending over. He also reported being thrown from a horse when he was small. He was found to exhibit lumbosacral spasm and tenderness to palpation. Lumbosacral strain was diagnosed. His reports of medical history and examination at discharge in 1963 show no back complaints, but the physician noted a brace. It was stated the Veteran had been thrown from a horse in 1950 and had used a brace from time to time since then for relief of low back pain. However, it was further stated that this symptom had not increased in severity for the past few years. Thus, the medical evidence at the time of the 1996 rating decision shows no notation of a back disorder, to include arthritis, in the 1959 entrance examination. During active serve, he was treated for symptoms of back pain on lifting and bending, and was diagnosed with lumbosacral strain. At discharge, he wore a back brace for relief of pain. According to the law in effect at the time of the 1996 rating decision, under Wagner, the Veteran’s own report alone, during active service, of a pre-service back injury alone where such is not noted on the enlistment examination is not sufficient to overcome the first prong of Wagner. 38 U.S.C. § 1111, 1132 (1996); 38 C.F.R. § 3.304 (1996). Notwithstanding, even if the Veteran’s report of pre-service injury could be found to sufficient to rebut the presumption of soundness, the second prong of Wagner remains. In this regard, the record at the time of the 1996 rating decision demonstrates at least some evidence of aggravation or worsening of back symptoms during active service, as the Veteran was treated for and diagnosed with lumbosacral strain during active service and the discharge examination in 1963 shows he wore a back brace. Therefore, the presumption of soundness could not have been rebutted in the December 1996 rating decision, based on application of the correct law to the evidence of record at that time. Because there is no clear and unmistakable evidence at the time of the December 1996 rating decision that a back disability both pre-existed entrance to active service and was not aggravated by active service, the presumption of soundness was not rebutted, and the claim should have been considered on a direct basis. See Wagner, 370 F.3d at 1094 96. The law concerning service connection at the time of the 1996 rating decision is the same as it is now. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (1996, 2019). At the time of the 1996 rating decision, the medical evidence shows the Veteran was sound on entry into active duty, and then sought treatment for back pain in service. He was objectively observed to exhibit lumbosacral spam and tenderness to palpation diagnosed as lumbosacral strain during active service and, at discharge, to have used a back brace. VA treatment records after service show observation of bilateral tenderness to palpation in the lumbar area in 1969, minimal osteoarthritis (OA) in the thoracic spine by x ray in 1977, and minimal early arthritic changes of the lumbar spine in 1988. X rays in 1988 were noted to have been taken one week after a motor vehicle accident (MVA). The record at the time of the 1996 rating decision further includes the Veteran’s description of inservice injuries to the back including a fall in a warehouse and injury during a typhoon at Anderson AFB in Guam. In the 1996 VA examination for joints, the Veteran reported low back pain that began during active service and had been present since 1960. However, he also reported an electrical accident in 1984 which required amputation of his right leg below the knee and a motor vehicle accident (MVA) in 1987 which resulted in a compressed spine. The VA examiner observed the Veteran to exhibit extensive scarring from the electrical accident with right below the knee amputation, atrophy of the right thigh, and subjective knife-like pain in the left thorax. Results of x ray conducted in conjunction with the 1996 VA examination showed mild degenerative changes at T9, noted to appear old, and moderate degenerative changes at L3-4. The VA examiner diagnosed mild degenerative changes involving the thoracic spine and moderate degenerative changes involving the lumbosacral spine. The VA examiner provided no etiology for these findings. The medical evidence at the time of the 1996 rating decision established the onset of back pain in service as the result of contemporaneous injury. Post-service evidence established a continuation of the Veteran’s reports of and treatment for back pain from active service to 1996, corroborated by x ray findings of degenerative changes in the thoracic spine in 1977 and again in 1996. Of note, x ray findings of arthritis in the thoracic spine were documented prior to the intervening MVA and electrical accident. Inescapably, these medical findings establish a nexus, or causal link, between the Veteran’s thoracic spine disability diagnosed in 1996 and the Veteran’s injury during active service. Concerning the lumbosacral spine, the 1988 x ray findings of early arthritis post-dates the MVA in 1987 and the 1984 electrical accident. Notwithstanding, the medical evidence of record at the time of the 1996 rating decision does not suggest or establish that the Veteran injured his back as a result of the electrical accident. In addition, the 1988 x ray results bear a notation that they were taken status post MVA one week ago and reference complaints of back pain over entire back. The findings of arthritic changes themselves were described as minimal and early, but not acute. Thus, and in context of the Veteran’s reported inservice injuries and his report to the 1996 VA examiner that his back pain began in active service and had persisted to that time, the Board finds that the preponderance of the evidence is supported a finding that the lumbosacral spine disability diagnosed in 1996 is causally linked to the inservice lumbosacral spine. Accordingly, revision of the December 12, 1996 rating decision is appropriate. Service connection for thoracic and lumbosacral spine disability is granted, effective October 10, 1996, the day the claim for service connection for a back disability that was the subject of the December 12, 1996, rating decision was received. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L.J. Bakke, 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.