Citation Nr: 21008876 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-25 488A DATE: February 18, 2021 ORDER Due to a clear and unmistakable error, the January 29, 1962, decision of the Board of Veterans’ Appeals (Board) of the Department of Veterans Affairs (VA) is revised to find that service connection of the Veteran’s preexisting bilateral pes planus on the basis of aggravation is granted. As the January 1962 Board decision is revised to grant service connection for the aggravation of pes planus, the issue of whether the Board committed a clear and unmistakable error in its June 11, 1963, decision by denying service connection for pes planus is moot and is dismissed. FINDINGS OF FACT 1. The Veteran’s marked bilateral pes planus was noted upon his entry to active duty. 2. The Veteran’s appeal for service connection for pes planus was denied in a January 29, 1962, decision of the Board. 3. The evidence of record at the time of the January 1962 Board decision included clear evidence that the Veteran’s bilateral pes planus had worsened during service. 4. It is undebatable that the evidence of record at the time of the January 1962 Board decision did not include any competent evidence suggesting that the increase in severity of the Veteran’s pes planus during service was clearly and unmistakably due to the natural progression of the disease. CONCLUSIONS OF LAW 1. The January 1962 Board decision that denied service connection based on aggravation of the Veteran’s preexisting bilateral pes planus used the incorrect legal standard, which led to a manifestly different outcome. 38 U.S.C. §§ 310, 353 (1962); 38 C.F.R. § 3.306 (1962). 2. The criteria for revision of the January 1962 Board decision on the basis of clear and unmistakable error have been met. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-1411. 3. The motion to revise the June 1963 Board decision that denied service connection for pes planus is moot. 38 U.S.C. § 7111. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant, who is the moving party, served honorably on active duty in the United States Army from August 1951 until December 1953. This matter comes before the Board from his June 6, 2020, motion to revise decisions the Board issued on January 29, 1962, and on June 11, 1963. Clear and Unmistakable Error Pursuant to 38 U.S.C. § 7111 1. Motion to Revise the January 1962 Board Decision. Legal Standard A prior final Board decision must be reversed or revised where evidence establishes that there is clear and unmistakable error (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 the Court and decisions on issues which have subsequently been decided by the 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). Analysis After reviewing the Veteran’s motion, the argument of his representative, the evidence of record and law in effect at the time of the January 1962 Board decision, the Board finds that the criteria for reversal of that January 1962 Board decision on the basis of CUE have been met. As an initial matter, the Board notes that the Veteran had previously submitted a motion to revise the January 1962 Board decision on the basis of CUE in July 2016. However, he withdrew that motion in August 2018 and the Board issued a dismissal of the motion in September 2018 without prejudice to refiling. He then submitted the instant motion that is the subject of the Board’s decision in June 2020. The Board finds that this motion meets the pleading requirements set forth at 38 C.F.R. § 20.1404. As such, the Board will turn to the merits of the Veteran’s motion. The crux of the Veteran’s motion is that the Board erred in January 1962 in the legal standard it used to evaluate the claim for service connection for his preexisting pes planus, and, had the correct legal standard been applied, the claim would have clearly and unmistakably been granted. The Board now agrees. As is the case today, service connection in January 1962 was available to Veterans “for aggravation of a preexisting injury” during active duty service. 38 U.S.C. § 310 (1962). VA’s regulations at that time clarified further that a preexisting injury or disease will be considered to have been aggravated by service “where there is an increase in disability during such service,” unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (1962). Moreover, although aggravation was not to be conceded where the disability at issue underwent no increase in severity during the period of service, “clear and unmistakable evidence (obvious or manifest)” was required to rebut the presumption of aggravation where an increase in severity in service was noted. 38 C.F.R. § 3.306(b) (1962). With respect to the facts of the Veteran’s case, there is no dispute that he had a preexisting pes planus disability at the time of his entry on active duty. At his pre-induction examination in March 1951, the examiner reported that the Veteran had “L-2; pes planus, marked.” He was nonetheless deemed qualified for military service. The Board acknowledged in January 1962 that this disability had been noted on entry. It then correctly noted that the central question to the Veteran’s claim was whether this marked pes planus had been aggravated by active duty service. In the Board’s January 1962 recitation of the law, it correctly cited 38 C.F.R. § 3.306 in noting that where an increase in disability occurred during service, a preexisting injury will be considered to have been aggravated by service unless there is clear and unmistakable evidence that the increase in disability was due to the natural progression of the condition. However, it did not thereafter apply this standard to the facts. In its discussion and evaluation of the evidence, the Board instead stated that the clinical records from service did not show any “superimposed injury or sudden pathological advancement” of the basic structures of the feet. The Board now notes that the law in effect in January 1962 did not require any superimposed injury or “sudden” pathological advancement of a preexisting injury. To the extent the Board in 1962 was treating the pre-existing pes planus disability as a genetic defect or disease, there was no citation to the laws then in effect pertaining to the treatment of such. Moreover, as is demonstrated below, the condition increased in severity during active service. The January 1962 decision did, however, note in its third finding of fact that the preexisting pes planus marked did not undergo an “actual pathological advancement” of the pre-service pes planus and therefore made the legal conclusion that there was no increase in disability during service. If no increase were to have occurred, the law would not require clear and unmistakable evidence that any progression of disease was not due to the natural progression of the disease and service connection would not be warranted. However, after reviewing the evidence of record at the time of the January 1962 decision, the Board cannot now say that any reasonable person would determine that no increase in severity had occurred during active duty service. As the Board itself noted in January 1962, less than a month after the Veteran entered onto active duty service, a clinical treatment record explained that the Veteran’s pes planus was “severe,” and he was prescribed arch supports and Thomas’ heels. The Board finds that the description of this disability as “severe,” which had previously been described only as “marked” at the time of entry can only be viewed as indicating an increase in severity of the Veteran’s pes planus had occurred. The only other in-service records referred to in the Board’s January 1962 decision were an x-ray examination from December 1951, an orthopedic consultation from March 1953 at which the Veteran had again been prescribed arch supports and Thomas’ heels, and the separation examination from December 1953. A review of the record before the Board reveals, in fact, that the Veteran received substantially more treatment for his pes planus throughout his service and that more than one clinician during that period referred to his disability as “severe.” For instance, in addition ot the September 1951 treatment note referred to in the January 1962 decision, the record before the Board at that time also included a service treatment note from November 1951 in which it was stated that the Veteran had complained of pes planus “which is really severe.” By December 1951, the Veteran’s pes planus again was referred to as “severe,” and symptoms reportedly had continued to gradually worsen. An October 1952 service treatment note again indicated the Veteran had severe pes planus. More contradictory evidence was noted in March 1953. In a handwritten orthopedic clinic note from March 27, 1953, the Veteran was stated to have “4+ pes planus” along with pain with even moderate activity. However, four days later, a typewritten treatment note indicated the Veteran had only mild pes planus. Nonetheless, the repeated references to the Veteran’s “severe” pes planus spanning more than a year of the Veteran’s time on active duty service strongly suggest that this condition had advanced past the “marked” pes planus that was noted upon entry. The record before the Board in January 1962 also included his induction and separation examinations. While both concluded that the Veteran had pes planus, his induction examination did not include any reference to painful pes planus, while his separation exam explicitly stated that this disability was occasionally painful. This too strongly suggests a worsening of disability due to service. The Board now finds that any reasonable reviewer of this evidence would determine that there had been an increase in the severity of the Veteran’s pes planus during service, as evidenced by the increase in the degree of this disability documented through the service record and the increasing reports of pain in the Veteran’s feet. As such, the Board finds that the January 1962 clearly and unmistakably erred when it found that no such increase had occurred. Given this finding, the regulations in effect in January 1962 specifically directed that a finding of service connection due to aggravation had occurred unless there was clear and unmistakable evidence that the increase was due to the natural progression of the disease. The Board did not apply this standard in its January 1962 decision. After extensively reviewing the record before the Board in January 1962, the Board finds that there was no competent evidence of record that clearly and unmistakably suggested that the Veteran’s increase in severity was due to the natural progression of the disease. Indeed, there was no competent evidence at that time that delved into the nature or cause of the progression of pes planus or which explained the cause of the increasingly severe symptoms of the Veteran’s foot disability. As such, the Board finds that it is undebatable that the record did not contain clear and unmistakable evidence that any such increase was caused by the natural progression of pes planus. Absent such a finding, the law in effect in 1962 required a finding that service connection on the basis of in-service aggravation be granted. The Board therefore finds that, based on the law in effect at the time and the facts before the Board, the January 1962 decision contains clear and unmistakable error in its determination that no increase in severity of the Veteran’s pes planus had occurred during active duty service. Had this error not occurred, the Board would have determined that the presumption of aggravation had not been rebutted and that the criteria for service connection due to the aggravation of the Veteran’s pes planus during active duty service were met. The January 1962 Board decision is therefore revised to reflect that service connection of the Veteran’s preexisting bilateral pes planus on the basis of aggravation is granted. As a final note, the Veteran and his representative have appeared to suggest at various points that they wish for the Board to also grant an earlier effective date for service connection for pes planus. The assignment of an effective date is a downstream, separately appealable issue from the issue of entitlement to service connection and the Board does not have the jurisdiction to grant any such request. The Veteran is free, however, to challenge any effective date assigned as the result of the effectuation of the instant Board decision. 2. Motion to Revise the June 1963 Board Decision Due to the Board’s order revising the January 1962 Board decision, the Board finds no need to address the remaining arguments regarding CUE in its January 1963 decision. As the January 1962 decision is now reversed, the question of whether the Board erred again in denying service connection for pes planus in June 1963 is moot. 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.