Citation Nr: 21067640 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19112545969A DATE: November 4, 2021 ORDER Due to a clear and unmistakable error (CUE), an August 4, 2020, decision of the Board of Veterans' Appeals (Board) is revised to grant an effective date of September 11, 2008, for the award of service connection for bilateral pes planus with hallux valgus and degenerative arthritis. FINDINGS OF FACT 1. The Veteran submitted a claim for service connection for flat feet on September 11, 2008, that was denied by a Department of Veterans Affairs (VA) Regional Office in a July 2009 rating decision. 2. At the time of the July 2009 rating decision, it is clear and unmistakable that the claims file did not include all relevant service treatment records pertaining to the Veteran's in-service treatment for foot symptoms. 3. The Veteran's subsequent claim from October 2015 for service connection for a bilateral foot condition was granted in February 2016 based in part on service treatment records that were added to the claims file after the July 2009 rating decision. 4. The Board's August 2020 decision clearly and unmistakable erred in determining that the provisions of 38 C.F.R. § 3.156(c) were not applicable to the Veteran's claim for service connection for flat feet. CONCLUSION OF LAW The criteria to revise the August 2020 Board decision on the basis of CUE have been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.156(c), 20.1403-04. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, served honorably on active duty in the United States Army from August 1980 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) from the Veteran's January 11, 2021, motion to revise an August 2020 Board decision. Whether an August 2020 decision of the Board contains a clear and unmistakable error in denying an earlier effective date for the award of service connection for the Veteran's bilateral pes planus A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have subsequently been decided by such a court. 38 C.F.R. § 20.1400. The motion to revise a prior final Board decision must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404 (b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice. 38 C.F.R. Part 20. 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). As a preliminary matter, the Board finds that the January 2021 motion meets the procedural and specificity requirements set forth at 38 C.F.R. § 20.1404. As such, the Board will proceed directly to the merits of the motion. The August 2020 decision that is the subject of the January 2021 motion arose after the Veteran was first granted service connection for bilateral pes planus in a September 2016 rating decision. The Veteran disagreed with that decision and perfected his appeal regarding the assignment of an October 2015 effective date for this award. The Board then issued its decision denying an earlier effective date. The Veteran essentially contends in his motion that this decision is in error due to its failure to consider the provisions of 38 C.F.R. § 3.156(c). The motion explains that the prior Regional Office decision that adjudicated the question of service connection for this disability was issued in July 2009. In the decision, the Regional Office explicitly explained in the introduction that the decision was being issued despite the fact that a variety of service treatment records were not available for review and that should records become available at a subsequent date the decision would be reconsidered. In the substantive portion of the decision addressing the foot disability, the decision explained that there was no evidence of diagnosis or treatment for flatfoot in service. The motion contends that in 2015 additional service treatment records became available and were associated with the claims file after the 2009 decision and therefore the proper effective date should relate to the date of the claim that led to the July 2009 decision. While the motion suggests that that claim was submitted on July 14, 2009, that date appears to coincide with the Veteran's notification of the July 2009 decision. It is clear from the record that the claim that led to that decision was actually submitted on September 11, 2008. The law in effect at the time of the August 2020 decision regarding the finality of decisions has not changed. Under that system, the standard rule is that when there has been a prior final decision on a claim, it may only be reopened upon the submission of new and material evidence. 38 C.F.R. § 3.156(a). However, VA's regulations also clarify that if at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Moreover, if an award is made based at least in part on the newly-received service records, the effective date will be the latter of the date entitlement arose or the date VA received the previously decided claim. 38 C.F.R. § 3.156(c)(3). As noted above, the Veteran's claim in 2009 was explicitly denied due to the absence of any in-service treatment or diagnosis for the claimed bilateral foot disability. While that rating decision did not consider all of the relevant service treatment records that now are clearly found within the claims file, it did list in the evidence of record "[c]opies of Service Treatment Records for the period January 1980 to August 1981." It is unclear which specific records from service were included, but it is similarly clear from the narrative of the adjudication of the foot condition that they did not include evidence of in-service foot treatment. The claims file now includes an assortment of service treatment records, to include records that appear to have an electronic date of receipt from November 1982. They include substantial additional records beyond the period identified in the evidence list from the July 2009 rating decision. Unlike that decision's description of the available service treatment records, they include numerous episodes of treatment for in-service foot symptoms. For example, they include an August 1982 record from an Army Health Clinic discussing a podiatry consultation for a potential permanent profile for flat feet. In the course of the more recent adjudication of the service connection claim for bilateral pes planus, VA arranged for the Veteran to attend a medical examination in July 2016. After reviewing the claims file, the examiner stated that the Veteran's foot condition progressed beyond its natural progression during service. That examiner cited "several entries" of service treatment records documenting foot-related pain, including in February 1981 and August 1982. Due to the positive opinion provided by the July 2016 examiner, VA ultimately granted the claim for service connection. Accordingly, despite the apparent November 1982 receipt date, from the face of the rating decision in July 2009 itself, the evidence is both clear and unmistakable that VA did not possess all relevant service treatment records at the time of that decision relating to the Veteran's foot condition through no fault of the Veteran. Sometime after that decision, service treatment records relevant to the claim were added to the claims file, and they included several reports of in-service treatment on which a positive medical opinion ultimately was obtained. The Board therefore finds that, applying the evidence of record at the time of the August 2020 decision to the law in effect at the time, it is clear and unmistakable that the provisions of 38 C.F.R. § 3.156(c) and specifically 38 C.F.R. § 3.156(c)(3) were implicated. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has specifically addressed these regulatory provisions. It held that the purpose of this regulation was to ensure "that a veteran is not denied benefits due to an administrative error." Jones v. Wilkie, 964 F.3d 1374, 1379 (Fed. Cir. 2020) (quoting Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014)). The regulation "serves to place a veteran in the position he would have been had the VA considered the relevant service department records before the disposition of his earlier claim." Id. Here, the grant of service connection in 2016 was clearly made based at least in part on the newly-obtained service records from August 1982. As there is no dispute that the Veteran otherwise met the criteria for service connection for flat feet for the entire claim period from the July 2009 rating decision, the proper effective date for the award of service connection is the date VA received the previously decided claim, i.e., September 11, 2008. There being a clear and unmistakable error in the August 2020 decision, it is revised to reflect an earlier effective date of September 11, 2008, for the award of service connection for bilateral pes planus with hallux valgus and degenerative arthritis. The motion is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.