Citation Nr: 21064536 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 13-36 082 DATE: October 20, 2021 ORDER The request for revision of the October 1968 rating decision that denied service connection for a kidney condition (enuresis) based on clear and unmistakable error (CUE) is granted. FINDING OF FACT The October 1968 rating decision contained a mistake of law that manifestly changed the outcome of the decision. CONCLUSION OF LAW The criteria for entitlement to revision of an October 1968 rating decision based on CUE pursuant to 38 C.F.R. § 3.105 are met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to May 1968. Procedurally, the Veteran was denied service connection for a kidney condition (enuresis) in October 1968. That decision became final. The Board denied the Veteran's motion for CUE in the October 1968 rating decision in an April 2017 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2018 memorandum decision, the CAVC affirmed the Board's decision. The Veteran appealed the CAVC decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In a December 2018 decision, the Federal Circuit vacated the decision and remanded to the CAVC. In O'Bryan v. McDonald, it was held that VA's longstanding interpretation of the definition of "congenital or developmental defect" under 38 C.F.R. § 3.303 (c) was whether it was capable of worsening or progressing. 771 F.3d 1376 (2014). The Federal Circuit found that the Board did not consider whether the kidney condition/enuresis, which was denied as a congenital or developmental defect, was capable of worsening. In accordance with the Federal Circuit's decision, the CAVC remanded the case back to the Board in February 2019 with instructions to consider O'Bryan and the recently decided Cousin v. Wilkie and "determine whether enuresis was a disability in 1968. If it was, then CUE is present in the 1968 RO decision." In an August 2019 decision, the Board found that enuresis was capable of worsening; thus, it could not be a congenital or developmental defect as understood by VA in 1968 and a clear and unmistakable error was committed in the 1968 decision. However, the error did not manifestly change the outcome of the decision because the enuresis was not a diagnosed disability required by 38 C.F.R. § 3.303 (a), but rather a symptom; the evidence of record did not reflect a diagnosed disability at the time of the 1968 decision. Thus, the Board denied the Veteran's CUE motion. In March 2021, the CAVC vacated the decision, finding that the Board did not comply with its February 2019 instructions that if enuresis was found to be capable of progressing, then the Board must find CUE. Turning to the relevant law, under regulations in effect at the time of the October 1968 rating decision, congenital or developmental defects were not diseases or injuries for which service connection could be granted. See 38 C.F.R. § 3.303 (c) (1968). For VA purposes, a defect differs from a disease in that a defect is more or less stationary in nature and a disease is capable of improving or deteriorating. See O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). A progressive congenital or developmental condition does not become a defect simply because it ceases to progress. Id. The O'Bryan decision applied this standard to a claim of CUE in a 1980 Board decision denying service connection based on the condition being a congenital or developmental condition. See 771 F.3d at 1378. In a subsequent decision, the Federal Circuit applied this standard to a claim of CUE in a 1954 rating decision denying service connection. Cousin v. Wilkie, 905 F.3d 1316, 1320-21 (Fed. Cir. 2018). 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 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. 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 evidence at the time of the October 1968 rating decision largely consisted of the service treatment records (STRs). The October 4, 1967 entrance examination report did not note any abnormalities related to the kidneys or urination. At the time of enlistment, he indicated "no" for kidney trouble or frequent or painful urination. Later that month, the Veteran reported having a kidney problem all his life with a "rather vague" history of frequent urination. No pain or history of urinary tract infections were reported. A few days later, he again reported that all his life he has had difficulty holding urine and urinates approximately every 30 minutes. A November 1967 record suggests a possible kidney infection and an inability to hold urine; the same record states that there was no infection indicated at present. In January 1968, the Veteran reported a burning sensation during urination. In March and April 1968, the Veteran reported a history of kidney trouble and frequent urination, recalling that he had trouble in school because teachers did not understand why he had to use the restroom so often. He recalled that a doctor had suggested a kidney operation. Despite extensive work-up in service, no abnormality was found and there was no diagnosis rendered. It was determined that the Veteran's frequent urination rendered him unfit for service. In his separation examination, no diagnosis related to the kidneys was noted; a diagnosis of inadequate personality was written. In his 1968 claim, the Veteran wrote that he had "trouble holding urine." In July 1968 correspondence, he elaborated that he had a chronic disease since childbirth which causes an inability to hold his urine. The Army doctor was unable to state the exact cause of his disease, but according to his mother, a doctor told her it was a kidney defect. In October 1968 correspondence, the Veteran stated he was discharged because of urination problems caused by a birth defect, but that the condition "got bad after induction into the Army." In January 1969 correspondencethe Veteran again stated he was discharged from the Army because of urination trouble which is caused by the kidney or bladder. He further stated that "[e]ach night and day they seem to weaken." Applying the correct definition for a congenital or developmental defect, the evidence indicates that his condition of frequent urination (though no formal diagnosis existed or could be found at the time) was capable of worsening over time. This is evidenced predominately from the Veteran's post-service statements that the condition worsened after joining the Army, and that it seems to "weaken" each day and night. Having found that frequent urination is a condition that is capable of worsening, the CAVC has made clear that the inquiry ends, and we must undergo no further legal or factual analysis. In compliance with the CAVC's instructions, the Veteran's CUE motion is granted. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.