Citation Nr: 21006107 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 20-19 390 DATE: February 3, 2021 ORDER Entitlement to revision of a January 1957 rating decision based on clear and unmistakable error (CUE) is dismissed. REMANDED Entitlement to service connection for a paraplegia condition is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to the paraplegia condition, is remanded. Entitlement to service connection for a neurogenic bladder condition, to include as secondary to the paraplegia condition, is remanded. Entitlement to service connection for an acquired psychiatric condition, however diagnosed and to include as secondary to a service-connected disability, is remanded. FINDING OF FACT The Veteran has not argued with requisite specificity that a January 1957 rating decision denying service connection for a ruptured disc contains CUE. CONCLUSION OF LAW Because the pleading requirements for a motion to revise a January 1957 rating decision denying entitlement to service connection for a ruptured disc based on CUE have not been met, the claim must be dismissed without prejudice to refiling. 38 U.S.C. § 7111; 38 C.F.R. § 20.1404. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1953 to July 1955, with additional service in the United States Army Reserve until 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). As an initial matter, the Board notes that the Veteran submitted a VA Form 21-22a, Appointment of Individual as Claimant’s Representative, in favor of an unaccredited attorney in December 2017. The Board notified the Veteran in November 2020 correspondence that in order to represent him, his representative had to be accredited to represent claimants before VA. The correspondence also explained the options that he could pursue if he wished to be represented in his appeal. Significantly, the letter informed him that if he did not respond to the letter within 30 days with respect to his choice of representation, the Board would assume that he wished to proceed pro se. To date, the Veteran has not responded to the November 2020 correspondence. The Board will thus assume that he wishes to represent himself in this appeal. The Veteran’s April 2019 substantive appeal was signed by the Veteran but submitted by the unaccredited representative, who also included arguments on the Veteran’s behalf. The RO did not question to the validity of the unaccredited representative and accepted the substantive appeal as timely filed. As such, the RO accepted the substantive appeal as timely, and the Board accepts the substantive appeal as timely filed, despite the lack of an accredited representative. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Additionally, the Board notes that it has broadened the scope of the Veteran’s claim for service connection for dysthymic disorder to a claim for an acquired psychiatric condition, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Dismissal By way of procedural background, the Veteran initially applied for entitlement to service connection for a ruptured disc in his back, which he said had caused paralysis in his lower extremities, in August 1956. In his initial claim, he reported that the problem first began in September 1954, two months after he had participated in a boxing match, and that he had received treatment at a dispensary at Fort Lewis, Washington, at that time. See August 1956 VA 21-526, Veteran’s Application for Compensation or Pension. His claim was denied in a January 1957 rating decision, which found that the first manifestations of myeloradiculopathy occurred in August 1956, after he was discharged from service, and that his disability had not been incurred in or aggravated by his service. The Veteran did not appeal the rating decision. In 2011, he filed various new claims for service connection in connection with his claimed back injury, which were denied in a January 2013 rating decision. In the December 2017 motion requesting revision of a prior rating decision based on clear and unmistakable error, or CUE, the Veteran’s unaccredited representative argued that a January 2013 rating decision contained CUE. Although she referred to his original application for service connection in order to explain the evidence before the RO at the time it issued the January 2013 rating decision, no arguments were put forth regarding whether the January 1957 rating decision contained CUE. Although the RO subsequently adjudicated this issue in the January 2019 rating decision on appeal here, no arguments have been articulated, and the Veteran has not alleged, that the January 1957 rating decision contained CUE. CUE is a very specific and rare kind of error. Where evidence establishes CUE, the prior decision will be reversed or amended. If multiple RO rating decisions have been issued, claimants must also specify which RO decision or decisions are being challenged. See Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). Although the Board has an obligation to read pro se filings liberally, there is no indication from any of his prior correspondence that the Veteran wished to collaterally attack the January 1957 rating decision. Moreover, the record does not contain any arguments with respect to the January 1957 rating decision specifically. Instead, the arguments focus on the January 2013 rating decision. As such, the Veteran has not plead with specificity an allegation of CUE in the January 1957 rating decision that denied entitlement to service connection for the ruptured disc in his back. See Simmons v. Principi, 17 Vet. App. 104 (2003). The claim is therefore dismissed without prejudice. In the future, the Veteran is free to submit a CUE motion that alleges, with requisite specificity, that he wishes to collaterally attack the January 1957 rating decision. REASONS FOR REMAND As set forth in more detail above, the Veteran originally applied for service connection for a ruptured disc in his back in August 1956. Subsequently, the Veteran filed a new claim for entitlement to service connection in June 2011. In that claim, he argued that he was entitled to service connection for paraplegia, as well as urinary symptoms and erectile dysfunction secondary to the paraplegia, and a nervous disorder due to “all conditions.” In a January 2013 rating decision, the RO denied his claims. In a notification letter discussing the rating decision, the RO explained that his service treatment records were silent for complaints, treatment, or diagnoses of these conditions. In December 2017, the Veteran submitted a motion challenging the January 2013 rating decision on the basis of CUE through the unaccredited representative. Generally, he alleged that the RO did not have the correct facts before it at the time the January 2013 rating decision. In the same correspondence, the unaccredited representative indicated that she had requested the Veteran’s medical records from Fort Lewis from the National Personnel Records Center (NPRC). In an attached July 2017 letter from NPRC, NPRC indicated to the unaccredited representative that the Veteran’s military records had been damaged in a fire that occurred in July 1973, although some of the records had been recovered. Without having to address the Veteran’s arguments with respect to CUE in the January 2013 rating decision, the Board notes that in January 2013, the claims file did not contain certain relevant service treatment records that were later associated with the record. To that end, the RO requested complete medical and dental records and the Veteran’s personnel file from NPRC in November 2018. They indicated that his dates of service were between August 1953 and July 1955. Thereafter, additional service treatment records that were not previously in the record were associated with the Veteran’s claims file. Portions of these service treatment records were translated from Spanish in November 2020. The translated document indicates that in a report of medical history dated June 1959 (i.e., during his service in the Reserve), the Veteran endorsed swollen and painful joints, frequent and painful urination, blood in his urine, arthritis or rheumatism, bone, joint, or other deformities, lameness, gall bladder trouble, and leg cramps. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Such relevant service department records include, but are not limited to, service records that are related to the claimed in-service event, injury, or disease, regardless of whether they mention a veteran by name, as well as additional service records forwarded by the Department of Defense or service department to VA at any time after VA’s original request for service records. Id. at 3.156(c)(1)(i)-(ii). Here, relevant service department records were received after the January 2013 rating decision denying entitlement to service connection. These records, which were requested in November 2018, were not already of record at the time of the January 2013 decision. These records describe complaints related to the Veteran’s urinary system, joints, and lower extremities. As these records directly relate to the Veteran’s service connection claims that were adjudicated in January 2013, the Board finds that these personnel records constitute relevant service department records. As such, 38 C.F.R. § 3.156(c) applies, and the January 2013 rating decision denying entitlement to service connection did not become final. Accordingly, the Board need not consider whether revision of the January 2013 rating decision based on CUE is warranted, as there is no prior final decision to consider. To that end, the Board has recharacterized the Veteran’s claims on appeal to reflect the impact of the relevant regulatory provisions. At this juncture, however, the Board cannot reach the merits of this appeal, as remand is warranted for additional development to be undertaken. For instance, as set forth above, the Veteran’s service personnel and service treatment records indicate that he served on active duty in the Army from 1953 to 1955, followed by six additional years in the Army Reserve. Service in the Reserve would have involved periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). “Active military service” is defined by VA law and regulations to include active duty, any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty, or any period of INACDUTRA when the individual concerned was disabled from an injury incurred in the line of duty. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for disabilities resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injuries incurred or aggravated while performing INACDUTRA. Although portions of the Veteran’s service treatment records and service personnel records are in the claims file, it appears that there could be outstanding service personnel and service treatment records with respect to his Reserve service. To that end, the RO stated that the Veteran’s period of service was between August 1953 and July 1955 but did not specifically request records from the period of Reserve service. It is thus unclear whether the RO has obtained his full personnel or medical records. This is significant, as there are no personnel records showing the actual dates of any periods of ACDUTRA or INACDUTRA. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This includes obtaining records in the custody of a Federal department or agency and service medical records that are relevant to a claim. 38 C.F.R. § 3.159(c)(2), (3). It is incumbent on VA to ensure that it has a complete record of these periods to determine whether the Veteran’s claimed disabilities resulted from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. On remand, the RO should thus make appropriate efforts to identify all periods of ACDUTRA and INACDUTRA and to obtain any outstanding service department records from those periods. 38 C.F.R. § 3.159(c)(1)-(2). Additionally, VA’s duty to assist claimants in substantiating their claims includes providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). At this juncture, however, no VA examinations have been obtained with respect to the Veteran’s claims for service connection that are on appeal. Such development 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 recurrent 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). Here, there is competent evidence that the Veteran currently has the conditions that are on appeal. There is also evidence suggesting that he incurred such conditions during or that they may otherwise be causally linked to his service. For instance, the Veteran submitted a May 2011 letter from Dr. O. opining that the claimed disabilities were causally connected to service. However, this evidence is insufficient, as Dr. O. did not indicate in her opinion what evidence she reviewed prior to rendering her opinion. In consideration of the foregoing, the Board finds that remand is also necessary to obtain medical examinations and opinions on the nature and etiology of his claimed disabilities. See McLendon, 20 Vet. App. at 83-86. Accordingly, the matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § § 20.800(c). Expedited handling is requested.) 1. After obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records related to the Veteran’s claims. 2. Additionally, contact the Veteran and ask him to submit any official military reports and/or orders showing the specific dates of periods of ACDUTRA or INACDUTRA service, or any other official documentation that might provide such information. After contacting the appropriate service organization, attempt to verify and enumerate all periods of “active military service,” to include relevant confirmed periods of ACDUTRA and INACDUTRA. This enumeration must be clear (noting the month, day, and year) and should consist of more than simply the Veteran’s pay periods or retirement points. Next, attempt to verify that all the Veteran’s service personnel records and service treatment records from any identified period of ACDUTRA or INACDUTRA service are obtained and associated with the claims file. Any negative response must be documented in the claims file, in which case the Veteran and his representative must be notified that these records cannot be located and given an opportunity to respond. 3. After the development outlined in steps one and two has been completed, schedule the Veteran for a VA examination with a qualified examiner(s) with respect to the nature and etiology of his claimed disabilities. The Veteran’s claims file and a copy of this remand should be furnished to the examiner, who should indicate that he or she has reviewed the claims file. The examiner is then asked to do the following: (a.) Identify any relevant conditions that have been present at the time the claim was filed or at any point during the pendency of this appeal. (b.) With respect to the claims for a paraplegia condition, erectile dysfunction, and a neurogenic bladder, opine as to whether it is at least likely as not (50 percent or greater probability) the disabilities had their onset during or is otherwise related to his active service. This also includes an opinion on whether the disabilities resulted from (1) a disease or injury incurred or aggravated during ACDUTRA, or (2) from an injury incurred or aggravated during INACDUTRA. (c.) If the examiner determines that the Veteran’s paraplegia condition had its onset during or is otherwise related to active service, opine as to whether it is at least as likely as not (50 percent or greater probability) the Veteran’s erectile dysfunction and neurogenic bladder condition were (1) caused, or (2) aggravated by the paraplegia condition. “Aggravation” is defined as worsening beyond the natural progression of the disability. The examiner is reminded that causation and aggravation are distinct concepts that must be addressed separately. If the examiner determines that the Veteran’s erectile dysfunction and/or neurogenic bladder condition is aggravated by the paraplegia condition, provide, to the extent possible, an opinion as to the approximate baseline level of severity of the disability before the onset of the aggravation. (d.) With respect to the claim for an acquired psychiatric condition, opine as to whether it at least as likely as not (50 percent or great probability) was (1) caused, or (2) aggravated by the paraplegia condition, erectile dysfunction, neurogenic bladder condition, or some other service-connected disability. “Aggravation” is defined as worsening beyond the natural progression of the disability. The examiner is reminded that causation and aggravation are distinct concepts that must be addressed separately. If the examiner determines that the Veteran’s acquired psychiatric condition is aggravated by one of the conditions listed above, provide, to the extent possible, an opinion as to the approximate baseline level of severity of the disability before the onset of the aggravation. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. The examiner is specifically directed to address Dr. O’s May 2011 medical opinion. In providing these opinions and rationale, the examiner is advised that it appears that some of the Veteran’s service treatment records were destroyed by a fire-related incident and are unavailable for review. As such, the examiner is reminded to consider the Veteran’s lay statements and that a lack of events recorded in his service treatment records cannot be the sole basis for a negative medical opinion. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.