Citation Nr: 21069265 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-15 394 DATE: November 18, 2021 ORDER The December 1984 decision denying service connection for bilateral ankle disability contains clear and unmistakable error (CUE). An earlier effective date for a grant of service connection for left ankle disability of June 16, 1984 is granted. An earlier effective date for a grant of service connection for right ankle disability of June 16, 1984 is granted. FINDINGS OF FACT 1. The correct regulatory provisions, as they were known at the time of the December 1984 (and February 1985) decision, were not applied, resulting in an undebatable and outcome determinative error. 2. The Veteran originally filed her claim for service connection for an ankle disability on July 9, 1984, which is within one year from her separation from service, on June 15, 1984. CONCLUSIONS OF LAW 1. The December 1984 decision contains CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105(a). 2. The criteria for an effective date of June 16, 1984, but no earlier, for the grant of service connection for a left ankle disability, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.160, 3.400. 3. The criteria for an effective date of June 16, 1984, but no earlier, for the grant of service connection for a right ankle disability, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to June 1984. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. By way of history, the Veteran originally submitted a service connection claim for a left ankle disability in July 1994; within one year of separation. A December 1994 rating decision denied service connection for bilateral ankle disability. A February 1985 rating decision affirmed the December 1984 denial after reviewing the Veteran's service treatment records finding no change in the prior decision was warranted. The Veteran did not timely appeal the December 1984 or February 1985 rating decisions, and the decisions became final. In August 2014, the Veteran moved to reopen her bilateral ankle disability claim. A March 2015 rating decision found that the Veteran was entitled to service connection for a bilateral ankle disability, effective August 29, 2014. The Veteran contends that she is entitled to an earlier effective date prior to August 29, 2014 based on CUE. 1. The CUE claim The Veteran contends there is CUE in the December 1984 rating decision that originally denied her claim for service connection for bilateral ankle weakness because the RO found the conditions existed prior to service. See also February 1985 Rating Decision (after service records were reviewed the RO found the evidence did not warrant a change in the prior decision). Preliminarily, the Board finds the Veteran pled a case for CUE with particularity. See April 2016 VA 21-4138 Statement In Support of Claim; see also July 2021 Hearing Transcript. Generally, a rating decision becomes final if an appellant does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). In order to find CUE in a prior adjudication, the following three-prong test must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). Clear and unmistakable error is a very specific and rare kind of error. It is the 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, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). In this case, the Veteran filed her initial claim for service connection for a left ankle disability in July 1984, stating her chronic ankle instability was due to her service. On examination in September 1984, she complained of bilateral ankle problems. As noted above, in the December 1984 rating decision, the RO denied the Veteran's claim, stating the Veteran's bilateral ankle condition pre-existed service. However, a 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 where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was clearly and unmistakably not aggravated. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). Moreover, a "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this regard, the Veteran underwent a physical examination at entry to service and her own report of medical history make clear she had no report of broken bones, cramps in her legs, bones, joints or other deformity, lameness, or foot or ankle trouble. See February 1981 Report of Medical Examination and Report of Medical History. Moreover, the Veteran completed basic training and advanced individual training without report of an ankle injury. In fact, her first report of an ankle injury was in 1982, one year after entering service. The Board acknowledges a treatment note in the Veteran's record from April 1983 that talks about her having ankle injuries since she was a child. The April 1983 treatment record was apparently used as the basis for denying the Veteran's claim for service connection in the December 1984 rating decision. However, despite the single notation of having a history of ankle problems prior to service, the Board finds the best medical evidence of record shows that the Veteran's ankle condition did not exist prior to service. The Board has reached this conclusion because the only evidence of a prior injury is the outlier April 1983 physician's "note," reported two years after entry into service, and because the medical examiners and the medical history report at entry, contemporaneous with entry, clearly indicate the Veteran was deemed sound at entry to service, without an ankle, leg or foot abnormality or condition noted. Here, the Board finds there is insufficient evidence to demonstrate that the Veteran's ankle disability pre-existed her service, based on this record in particular. Accordingly, we are left with a Veteran who is presumed sound upon entry into service. Importantly, the Veteran's bilateral ankle disability was subsequently found to be service-connected by the RO in a March 2015 rating decision. Based on the above, the Board finds there was CUE in the initial December 1984 decision that denied the Veteran's claim for service connection for bilateral ankle disability on the basis of having a pre-existing injury. The Board finds this is not a case in which there is a disagreement as to how the facts were weighed or evaluated. Rather, the RO did not correctly apply the regulatory provisions extant at the time (i.e., presumption of soundness) that would have manifestly changed the outcome at the time it was made. See March 2015 Rating Decision. The Veteran clearly was presumed sound at entry to service in regards to both of her ankles and did not report ankle injuries until several years after entering service. EFFECTIVE DATE 1. An earlier effective date for service connection for left ankle disability 2. An earlier effective date for service connection for right ankle disability With CUE in the December 1984 decision established, the remaining issue is the proper effective date to be assigned for the award of service connection for a bilateral ankle disability. As the December 1984 decision contained clear and unmistakable error, the effective date of the award for benefits is the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. See 38 C.F.R. § 3.400 (k). Generally, the effective date of a rating and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). (Continued on the next page) In this case, the first formal or informal claim for service connection for a bilateral ankle disability was received by the RO on July 9, 1984. However, the RO is advised that the effective date for the award of service connection for a bilateral ankle disability will be June 16, 1984, the day after separation from service since the Veteran's original July 1984 service connection claim was filed within one year of separation from service. See 38 C.F.R. § 3.400(b)(2). Therefore, the effective date for the grant of service connection for her bilateral ankle disability must be June 16, 1984. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.