Citation Nr: 21073652 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-31 108 DATE: December 9, 2021 ORDER The motion to reverse on the basis of clear and unmistakable error (CUE) the December 1980 rating decision that denied service connection for ruptured muscle, right groin is denied. Entitlement to an earlier effective date of January 27, 2017, for the award of service connection for right knee instability is granted. Entitlement to an earlier effective date of January 27, 2017, for the award of service connection for right knee joint arthritis is granted. FINDINGS OF FACT 1. The December 1980 rating decision that denied entitlement to service connection for a ruptured muscle of the right groin was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. 2. At the time of the Veteran's grant of service connection for right knee instability and right knee osteoarthritis, he had perfected an appeal for a service connection claim for a right knee disability based on a claim filed on January 27, 2017. CONCLUSIONS OF LAW 1. The December 1980 rating decision that denied service connection for a ruptured muscle of the right groin was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The criteria for entitlement to an effective date of January 27, 2017, for the award of service connection for right knee instability have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.156, 3.400. 3. The criteria for entitlement to an effective date of January 27, 2017, for the award of service connection for right knee joint arthritis have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to March 1966. In October 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding was in the record. 1. The motion to reverse on the basis of CUE the December 1980 rating decision that denied service connection for ruptured muscle, right groin The Veteran asserts CUE in a December 1980 rating decision that denied service connection for a ruptured muscle in the right lower extremity, apparently because there was no evidence of the injury in service. In his April 2018 motion, the Veteran simply asserted that the prior denial of service connection was made in error. He argued in his October 2021 Board hearing that his right lower extremity muscle injury was noted, but misdiagnosed, in his service treatment records in an April 1965 entry. The Veteran apparently implies in his testimony that the failure to recognize this misdiagnosed muscle injury in the December 1980 rating decision amounted to CUE. Based on a review of the record, the Board finds that the December 1980 rating decision should not be revised or reversed due to the claimed CUE. A determination that a prior determination involved CUE involves the following three-prong test: (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 have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error 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). 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 (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. The standard is not whether it is reasonable to conclude that the outcome would have been different. King v. Shinseki, 26 Vet. App. 433 (2014). Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). In this case, neither the Veteran nor his representative have specifically asserted that the correct facts, as they were known at the time of the December 1980 rating decision, were not before VA adjudicators or that the law extant at the time was incorrectly applied. Instead, as noted above, the Veteran asserted that he suffered his right lower extremity muscle injury in service, which was noted but apparently misdiagnosed in an April 1965 service treatment record. At the time of the December 1980 rating decision, the evidence included a September 1980 VA examination in which the Veteran was diagnosed with a muscle rupture to the right medial thigh with some loss of strength in the right leg. The examination report did not include an opinion as to the etiology of this diagnosed condition. Also of record at the time of the prior rating decision was a July 1980 private examiner's report which noted the Veteran had a "chronic rupture of the adductor magnus muscle in the inner right groin area." The examiner provided a positive nexus opinion that he stated was based on the reported medical history provided by the Veteran. Finally, at the time of the December 1980 rating decision, the Veteran's available service treatment records were of record. As noted in the August 2018 rating decision, these records include a note referencing the right groin, but it was in reference to edema and adenitis of the right groin secondary to athlete's foot. The treatment record is dated April 6, but the year is illegible. Additionally, the Veteran's March 1966 separation examination reflects that a clinical evaluation resulted in normal findings. Further, a March 1966 Report of Medical History shows that the Veteran self-reported that his health was "good," and he did not report any past medical history consistent with a muscle injury to his right leg. Following a review of the record, the Board finds that the Veteran's CUE arguments are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator in the December 1980 rating decision. However, "[i]t is the prerogative of the factfinder ... to interpret the evidence and draw reasonable inferences from it." Evans v. McDonald, 27 Vet. App. 180, 185, 187 (2014). The Veteran's arguments are inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92 (1995); Crippen v. Brown, 9 Vet. App. 412 (1996). There is nothing in the record to support that the AOJ did not apply the appropriate law or did not have the correct facts before it at the time of its December 1980 rating decision and, therefore, the Veteran's motion for revision of that decision must be denied. 2. Entitlement to an earlier effective date of January 27, 2017, for the award of service connection for right knee instability 3. Entitlement to an earlier effective date of January 27, 2017, for the award of service connection for right knee joint arthritis The Veteran was awarded service connection in a December 2020 rating decision for right knee instability and right knee joint osteoarthritis, both effective from the October 2, 2020, date of a supplemental claim. See VA Form 20-0995. At the time of the December 2020 rating decision awarding service connection, the Veteran had a pending perfected appeal seeking service connection for a right knee disability. On January 27, 2017, The Veteran initially filed his claim for service connection for, among other conditions, a right knee disability. See VA Form 21-526 EZ. His claim was denied in a June 2017 rating decision. In February 2018, the Veteran filed a Notice of Disagreement with respect to the denial. In April 2018, a Statement of the Case was issued to the Veteran. In response, the Veteran filed a VA Form 9 in June 2018, perfecting his appeal of the service connection claim for a right knee condition. The appeal was certified to the Board in May 2020. See VA Form 8. Therefore, in light of the pending perfected appeal at the time of the award of service connection, the Board finds that an effective date of January 27, 2017, is warranted for both service-connected right knee instability and right knee joint arthritis. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.