Citation Nr: A21016901 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 210525-162883 DATE: October 19, 2021 ORDER Revision of the July 2010 rating decision denying service connection for the Veteran's achilles tendonitis peritenonitis (achilles tendonitis) and plantar fasciitis based on clear and unmistakable error (CUE) is denied. REMANDED Service connection for achilles tendonitis is remanded. Service connection for plantar fasciitis is remanded. FINDING OF FACT There was no mistake of fact or law in the July 2010 rating decision that would have manifestly changed the outcome of the decision. CONCLUSION OF LAW The criteria for entitlement to revision of a July 2010 rating decision based on 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 FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to June 1972. These matters are on appeal to the Board of Veterans' Appeals (Board) from a July 2020 rating decision. In March 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for achilles tendonitis and plantar fasciitis most recently addressed in a July 2010 rating decision. In July 2020, the regional office (RO) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the May 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. In the supplemental claim, the Veteran contended CUE in the July 2010 rating decision denying service connection for his achilles tendonitis and plantar fasciitis. He submitted new and relevant evidence, including medical records, lay statements, and articles. He also submitted correspondence setting forth three contentions of CUE in the July 2010 rating decision: (1) that the RO incorrectly wrote that the Veteran served in the Air Force instead of the Army, which demonstrates that the RO either did not review evidence or ignored evidence; (2) that the RO incorrectly stated that there was no evidence of record that his achilles tendonitis was incurred in or was caused by active service; and (3) that the RO incorrectly stated that there was no evidence of record that his plantar fasciitis was incurred in or was caused by active service. The Veteran has submitted correspondence further explaining that the RO ignored evidence, namely a January 1970 service treatment record, that was favorable to his claim. In the July 2020 rating decision, the RO found that new and relevant evidence had been received, reopened the claims, and denied the claims. The RO also considered the Veteran's first CUE contention, that the military branch misprint constituted CUE. However, it did not address the other two contentions of CUE. As such, the Board does not have jurisdiction over those contentions because there has not been an initial adjudication by the RO. Additionally, in the Veteran's most recent Informal Hearing Presentation submitted by his representative, it appears to allege CUE in the July 2020 rating decision. A CUE claim cannot be filed as to a matter that is still appealable or pending. See May v. Nicholson, 19 Vet. App. 310, 317 (2005) (stating that a CUE claim "cannot lie as to a decision that is still open to direct review"). Not only is it legally erroneous to file a CUE motion to a pending claim, but in this case, it does not benefit the Veteran to analyze his service connection claim under such a stringent standard. As such, the Board will analyze the claim as one on the merits, rather than as a CUE motion. CUE in the July 2010 rating decision As stated above, the Veteran contends CUE was committed in the July 2010 rating decision due to the incorrect statement that he served in the Air Force. At the outset, the Board notes that the Veteran submitted new and relevant evidence to be considered in his CUE motion. CUE, by its very nature, is based on the law and evidence that existed at the time of the decision. While the Board has considered the Veteran's submitted arguments to support his claim, the Board can only consider the evidence that was available to the RO at the time of the July 2010 decision. 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. 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 RO in the July 2020 rating decision acknowledged that it was error to state that the Veteran served in the Air Force. While VA regrets the error, the Board finds this error to be harmless. Contrary to the Veteran's contentions, it does not demonstrate that VA did not review evidence or ignored evidence, nor does it represent gross negligence, criminal intent, or an intentional disregard to the Veteran's claim. Rather, this most logically represents a typographical error. There is no evidence that this error had any bearing on the substantive determinations made in that decision; the correct service records with the correct service dates and branch were of record, as noted in the decision. Thus, while it is clear and unmistakable that an error was made, it is not clear and unmistakable that the error changed the outcome of the case in any way. In other words, there is no evidence to suggest that, absent the mistake of writing Air Force instead of Army, the Veteran's service connection claims would have been granted. As the elements of CUE have not been met, the Veteran's motion for revision of the July 2010 rating decision based on CUE is denied. REASONS FOR REMAND 1. Service connection for achilles tendonitis The Veteran contends his achilles tendonitis was diagnosed in service. He contends that service connection is established by a January 1970 service treatment record (STR), and his treating VA podiatrist, Dr. W.'s, interpretation of that document. The Veteran specifically contends that the January 1970 document clearly reflects complaint, diagnosis, and treatment for left achilles tendonitis peritenonitis tendinosis. In 2018 and 2019 VA treatment records, Dr. W. noted the following: Patient has with him records he obtained from the Army from 1970. He has notes from three army medical officers Dispensary #2 Reynold's Army Hospital at Fort Sill, OK which indicates trouble in his left leg beginning Jan. 30, 1970. The first note is interpreted by me as saying he had tendonitis left leg (likely achilles tendonitis). The second note dated 15 APR 1970, says swelling left thigh. The third note (the most legible) says See Consult Sheet: Patient with DX (diagnosis) left painful achilles tendon/thigh in April treatment with TCN (?) (patient relates they gave him a soft case to left foot). Patient reports he has had left fullness in leg and tibia. No swelling at tendon. Another record from Dr. W. relates the Army injury to his 2011 X-ray diagnosis. Contrary to the Veteran's contentions, the evidence is not quite so clear. The January 30, 1970 STR is largely illegible. By the Board's review of the document, it is possible that the record states "L T achilles." However, even assuming it does reference his left achilles tendon, this mention alone is insufficient to establish an in-service incurrence. From the Board's reading, it is unclear from the treatment note what the injury or complaint regarding the achilles tendon was or what, if any, diagnosis or treatment was rendered, or whether it has any connection to his current diagnosis. Similarly, while the Board makes no credibility finding as to the Veteran's lay testimony (who has provided multiple statements recalling being diagnosed and treated for the condition in service) or Dr. W.'s interpretation of the record at this juncture, the Board cannot decide the claim based on this evidence alone. The Board's reading of the 1970 STR appears to be at odds with Dr. W.'s interpretation. The third May 1970 record appears to the Board to say "Pt. with dx of epididymitis in April. Treated with TCN." The consultation sheet referenced further shows diagnosis and treatment for epididymitis. In contrast, Dr. W. interprets the record to state "Patient with DX left painful achilles tendon/thigh in April treatment with TCN." However, the Board finds that it was pre-decisional error not to afford the Veteran a VA examination based on the evidence. See 38 C.F.R. § 20.802. An examination is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In addition to the evidence referenced above, the Veteran also submitted evidence that his current diagnoses were caused by the boots he wore during training. He submitted personal statements as well as various articles describing the training conducted at Fort Sill during the time he was there, as well as medical literature indicating a potential link between lower extremity disorders among men and women in Army basic training and the effects of the boots worn. The Veteran has a current disability. He has alleged on multiple occasions that his disability was incurred in service, providing lay testimony and various articles and medical literature to support his claim. Finally, the medical literature, along with Dr. W.'s treatment records, indicate that there may be a nexus. Thus, the elements warranting an examination have been met. As this evidence was all of record at the time of the July 2020 rating decision, it was pre-decisional error not to afford the Veteran an examination, and remand is necessary. Additionally, both the Veteran and his wife have submitted correspondence providing information on private medical treatment at MedClinic prior to the issuance of the July 2020 rating decision that was not obtained by the RO. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This failure in the duty to assist constitutes an additional pre-decisional error warranting remand. 2. Service connection for plantar fasciitis The Veteran contends his diagnosed plantar fasciitis is proximately caused by his achilles tendonitis, and he has submitted medical literature exploring the link between the two conditions. Thus, the two claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Because the Veteran's contention is that the plantar fasciitis was also caused by his boots during training (and that the two conditions are often seen together), the Board finds that the pre-decisional error in failing to schedule a VA examination for the achilles tendonitis applies to the plantar fasciitis claim too. The matters are REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, the private treatment records from MedClinic should be obtained. 2. Schedule a VA examination for the Veteran's claimed disabilities. (a.) The examiner must review all records, to specifically include the 1970 service treatment record, Dr. W.'s VA treatment notes, and the articles, medical literature, and lay statements submitted by the Veteran. (b.) The examiner must interpret the January, April, and May 1970 treatment record to the extent he or she is able. (c.) If any of the service treatment records reference a foot or ankle disability, the examiner must opine whether such records represent an in-service incurrence that is at least as likely as not (50 percent or greater probability) related to the Veteran's current foot/ankle diagnoses (to include achilles tendonitis and plantar fasciitis). (d.) Regardless of whether the service treatment records reflect an in-service incurrence, the examiner must opine whether it is at least as likely as not that the Veteran's current foot/ankle diagnoses are related to active service. (e.) If the examiner finds that the Veteran's plantar fasciitis is not related to active service, he or she must opine whether it is at least as likely as not that the plantar fasciitis is proximately caused or aggravated by his achilles tendonitis diagnosis. 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.