Citation Nr: 21002495 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-67 967 DATE: January 13, 2021 ORDER Entitlement to revision of the July 1990 rating decision that denied service connection for left groin strain on the basis of clear and unmistakable error (CUE) is granted. FINDING OF FACT 1. A July 1990 rating decision denied service connection for a left groin strain. 2. The Veteran did not file a timely appeal and did not submit new and material evidence within one year of the rating decision. Therefore, the July 1990 rating decision is final. 3. The clear and unmistakable errors of fact and law committed by the RO in the July 1990 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the errors not been made. CONCLUSION OF LAW 1. The criteria for revising or reversing the July 1990 rating decision that denied service connection for a left groin strain, on the basis of CUE have been met. 38 U.S.C. §§ 1131, 1155, 5107, 5109A, 7252 (1990); 38 C.F.R. §§ 3.105, 3.303, 3.400 (1990). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from July 1987 to July 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision denied the request for revision of the July 1990 rating decision that denied service connection for a left groin strain on the basis of clear and unmistakable error (CUE). That decision was appealed to the United States Court of Appeals for Veteran Claims (Court in December 2019. In a June 2020 CAVC decision, the May 2019 Board decision was set aside, and the matter was remanded to the Board for readjudication. The matter is again before the Board. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Clear and Unmistakable Error (CUE) Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, where evidence establishes such error, the prior rating 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 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE 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). CUE is a collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Entitlement to revision of the July 1990 rating decision that denied service connection for left groin strain on the basis of clear and unmistakable error (CUE) The Veteran asserts that the RO made a clear and unmistakable error when it determined that the medical evidence of record showed treatment and resolution of left groin strain without ascertainable residual disability; and denied service connection for left groin strain. See Correspondence, September 2017. Historically, in a July 1990 rating decision, the Veteran was denied service connection for left groin strain. See Rating Decision, July 1990. In an August 1990 correspondence, regarding the groin strain, the RO stated, “The following conditions you have claimed as service connected appear in the service medical records. However, the record also shows they were treated and they resolved without ascertainable residual disability.” See Notification Letter, August 1990. A review of the evidence of record at the time of the July 1990 rating decision reveals that VA received the Veteran’s application for compensation on July 14, 1989, one day after discharge from military service. See VA 21-526, July 1989. Service treatment records contain reports of a September 1986 pre-service examination in which the examiner reported that the Veteran sustained a compound fracture of the lower left leg when the motorcycle entered a small ditch. The accident was three years earlier and the examiner found that it was well healed. The concurrent physical examination showed no lower extremity abnormalities and the Veteran was accepted for service and presumed sound. The STRs were incomplete as there were no outpatient treatment records for most of the Veteran’s service. A May 1989 Medical Evaluation Board report, drafted by Dr. W.T., reflects that Veteran reported the onset of left groin pain during Basic Combat Training secondary to running. See STR-Medical-Photocopy, July 1990 at p.3 of 6. The report notes that the Veteran was subsequently evacuated from Germany in February 1989 to California where she was placed in Medical Hold Company; and continued to complain of left groin pain with running, marching, jumping, climbing with no benefit to conservative management. Id. It is noted that a physical examination conducted by Dr. E.S. revealed tenderness to deep palpation in the left groin; full range of motion of the hip, reference flexion, extension, internal and external rotation, abduction and adduction; and normal gait without limp or use of assistive devices. Id. It also is noted that the Veteran was subjectively unable to perform the physical requirements of the United States Army secondary to subjective chronic left groin pain with any physical activity. Id. at p.4 of 6. The Veteran’s diagnosis was noted as left groin strain, chronic, subjectively without objective findings and it was recommended that the Veteran be presented to the Physical Evaluation Board. Id. The diagnosis of chronic left groin strain was confirmed by a Dr. H. on July 13, 1989. Id. at p.5 of 6. The evidence of record clearly showed (1) that the Veteran’s left groin strain began in service, (2) created limitations in physical activities and pain, and (3) resulted in a medical discharge the day before the Veteran’s application for benefits. Further, the diagnosis of chronic left groin strain was based on the subjective report of the Veteran and confirmed by three military doctors. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Although decided at a much later date, this finding is a precedential interpretation of the law for a current disability in effect at the tine of the 1990 rating decision. Therefore, as there was credible and persistent reports of left groin pain during service that caused limitations of function precluding further service as a solider, and notwithstanding any clinical diagnoses, the Veteran did have a disability at the time of discharge. The Board finds that the RO committed a clear and unmistakable error when it found, without a medical basis for this determination, that the Veteran’s left groin strain was “acute” and had “resolved without ascertainable residual disability.” The decision essentially found no current disability, contrary to the findings in the service records. But for these errors of fact, the Veteran would have not been denied service connection for left groin strain, as there was no evidence of record to suggest that the Veteran’s chronic left groin strain was “acute” or had resolved any time after the day following discharge to the July 1990 rating decision. At the time of the July 1990 rating decision, under 38 C.F.R. § 3.303, service connection was shown by evidence establishing that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. See 38 C.F.R. § 3.303(a) (1990). This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Id. For a disability resulting from personal injury suffered or disease contracted in line of duty in line of duty, in the active military, naval or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury was incurred, compensation as provided in this subsection. See 38 U.S.C. § 1131(1990). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1990). Based on the law that existed at the time of July 1990 rating decision, service connection should have been granted because the evidence of record established (1) that the Veteran’s left groin strain was incurred during basic training secondary to running, (2) the groin strain resulted in a chronic disability manifested by pain with physical activity, and (3) the Veteran was discharged honorably from the period of service in which the injury was incurred. See 38 U.S.C. § 1131(1990). The Board finds that the RO committed a clear and unmistakable error by not applying the law in existence at the time of the July 1990 rating decision. See 38 C.F.R. § 4.3 (1990). But for these errors of law, service connection for left groin strain would have been granted. Based on the information above, the Board finds that the clear and unmistakable errors of fact and law committed by the RO, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the errors not been made. See 38 C.F.R. § 3.344. As such, the Board finds that the reversal of the July 1990 rating decision is warranted. See 38 C.F.R. § 3.105. Therefore, the request to revise the July 1990 rating decision that denied service connection for left groin strain on the basis of CUE is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate 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.