Citation Nr: 21011792 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-08 258 DATE: March 2, 2021 ORDER The appeal to reopen the Veteran's claim for service connection for a back condition is granted. Service connection for a back condition is granted. The motion to revise a September 1993 rating decision (that denied service connection for a back condition) on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. A September 1993 rating decision that denied service connection for a back condition became final because it was not appealed, and no new and material evidence was received within one year. New and material evidence was submitted in October 2019 in the form of a new diagnosis of degenerative changes of the spine, and a positive causal link (nexus) opinion concluding that the Veteran’s current back disability is at least as likely as not, due (at least in part) to an injury experienced by the Veteran during his honorable period of service. 2. The Veteran has a currently diagnosed back disability, to include degenerative changes to the lower thoracic spine with anterior osteophyte formation and disk space narrowing (See October 2019 private medical opinion); at his October 2019 Board hearing, he provided competent (qualified) and credible testimony that he experienced an in-service injury during an honorable period of service and that his back pain has persisted since August 1983 (See also, July 2017 notice of disagreement, September 1983 service treatment record); and in the October 2019 private medical opinion, the examiner stated that he was certain after reviewing the Veteran’s service treatment records, that it is more likely than not, that the Veteran’s current back condition is at least partially related to the injury the Veteran suffered in service. 3. The correct and relevant facts, as known at the time, were before VA adjudicators in September 1993 and the statutory and regulatory provisions existing at that time were correctly applied. CONCLUSIONS OF LAW 1. New and material evidence has been submitted sufficient to reopen the claim for service connection for a back condition. 38 U.S.C. §§ 5108 (2018), 5103A, 5109A; 38 C.F.R. §§ 3.104, 3.105, 3.156, 3.400. 2. The criteria have been met for service connection for a back condition. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). 3. The criteria have not been met to revise the September 1993 decision on the basis of CUE. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from October 1982 to January 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Issues on Appeal The Veteran originally filed his April 2017 VA 21-526EZ (fully developed claim) to reopen his service connection claim for a back condition with an assertion that CUE was committed by the AOJ in a September 1993 rating decision. The AOJ denied reopening in a July 2017 rating decision. The Veteran’s July 2017 notice of disagreement (NOD) did not expressly include more details about the CUE allegation. However, the AOJ addressed the Veteran’s CUE allegation in the September 2017 statement of the case (SOC) and the undersigned Veterans Law Judge (VLJ) took testimony on the issue at an October 2019 Board hearing. Thus, VA has waived any formal objection to the deficiency in the Veteran’s NOD and the issue is now properly before the Board and will be addressed below. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for recurrent chronic mechanical back pain to encompass any back disorder, to include recurrent chronic mechanical back pain or degenerative changes of the spine. Factual Background The Veteran entered service in October 1982. In September 1983, his service treatment records document that he was seen with complaints of back pain. The note does not state what caused the pain and indicates “R[ange] o[f] m[otion] in back full. No swelling or discoloration. No loss of feeling to legs or back.” The Veteran was discharged from service in October 1992. In November 1992, one month after he was discharged from service, the Veteran submitted a claim for service connection for “chronic upper back [and] low back pain” and noted “conditions occurred during honorable period of service and are continuing now.” In early September 1993, VA issued an administrative decision finding that the Veteran was eligible for benefits accruing from his period of honorable service (October 1982 to mid-January 1990) but was not eligible for benefits accruing from his period of dishonorable service (from mid-January 1990 through to his final discharge in October 1992). Later the same month, VA issued a rating decision denying service connection for a back disorder. The entirety of the explanation read as follows: X-ray of thoracic spine 3-6-91 negative for fracture. Recurrent, chronic mechanical back pain followed injury 4-8-91 during a period of dishonorable service. There is no medical evidence of record establishing existence of any chronic disease or disorder affecting back during sole period of honorable service, 10-15-82 to 1-13-90. Consequently, service connection is not warranted. The Veteran did not appeal this decision and it became final. In April 2017, the Veteran filed a VA form 21-526EZ (fully developed claim). On it, he wrote “Cue for denial of back disorder” and the only elaboration was that the original claim was denied “stating that the claimed condition didn’t originate during time periods of honorable service[.]” In May 2017, a VA examiner diagnosed the Veteran with degenerative arthritis of the spine and provided a negative nexus opinion. The Veteran reported that his low back began to hurt in 1983 (which is confirmed in service treatment records (STR)) The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that the Veteran’s currently diagnosed back condition was not the same as the condition that affected him while on active duty, the evidence suggested that the in-service back problem resolved, and the Veteran’s current back condition was more likely related to age than his reported back problems during service. In July 2017, the AOJ (responding to what it described as the Veteran’s “new claim”) cited the September 1993 rating decision denying service connection for a back disorder and concluded that “the decision to deny compensation for recurrent chronic mechanical back pain is not considered to have been clearly and unmistakably erroneous because the alleged error involved an exercise of judgment which cannot be characterized as undebatable erroneous.” Also in July 2017, the Veteran submitted a notice of disagreement (NOD) that did not expressly include additional details about the CUE allegation but asserted that the Veteran’s STRs verify that his back condition began in 1983. The Veteran also stated that the back symptoms progressed over time into a more severe condition as time went on. The Veteran stated that he initially hurt his back while serving on the USS Dwight D. Eisenhower and that x-rays were not taken at the time. A September 2017 statement of the case (SOC) confirmed that no revision of the September 1993 rating decision was warranted because there was no CUE. The SOC also stated (incorrectly) that a disability which began during service or was caused by an in-service injury must be considered “chronic” before service connection can be granted. At an October 2019 Board hearing, the Veteran confirmed his previous statements about the origin of his back pain, the persistence of the symptoms of pain and instability since the incident in service, and how his back condition has worsened since the in-service injury. Additionally, the Veteran’s representative suggested that a motion for revision based on CUE was perhaps not an appropriate method for reopening the Veteran’s claim for service connection for a back condition; noting that he had not been the individual representative who had suggested this approach. 1. The appeal to reopen the Veteran's claim for service connection for a back condition is granted. Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). An appellant generally can attempt to overcome the finality of a prior final decision of the AOJ or Board in only one of two ways: by submitting a request to reopen the claim based upon new and material evidence OR by submitting a motion requesting revision of a prior decision based on clear and unmistakable error (CUE). See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 7111(a). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Factual Background & Analysis In a September 1993 rating decision, service connection for a back condition was denied and that decision became final because it was not appealed and no new and material evidence was received within one year. In April 2017, the Veteran submitted a fully developed claim for compensation and, in section 11, stated “CUE for the denial for back disorder.” The Veteran testified at the October 2019 Board hearing that he had his back condition when the September 1993 rating decision denied service connection. The Veteran’s representative stated at the hearing that what appeared to be missing at the time of the September 1993 rating decision was the third element of service connection, that is, the causal link (nexus) element. Notwithstanding the above, new and material evidence was added to the Veteran’s claims file at the October 2019 Board hearing. This included a new diagnosis of a back condition and a positive causal link between the Veteran’s current back condition and his honorable military service. The evidence raises a reasonable possibility of granting (and, in fact, establishes the necessary elements for) service connection for a back condition. Additionally, the causal link (nexus) evidence was not part of the record in September 1993. Therefore, reopening is warranted based on this new and material evidence. 2. Service connection for a back condition is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for a back condition, on the merits, is granted. 3. Whether clear and unmistakable error (CUE) was committed in a September 1993 rating decision Legal Criteria 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 allege CUE on the basis that previous adjudications 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, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. There is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither 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 the time were incorrectly applied,” AND (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 only on the record and law that existed at the time of the prior adjudication. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). For a motion alleging CUE to succeed, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion (to which reasonable minds could not differ) that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999). If the error alleged is not the type of error that, if true, would be CUE on its face, or if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, then the motion must be denied or the appeal to the Board terminated. Luallen v. Brown, 8 Vet. App. 92 (1995). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). Factual Background and Analysis As a threshold matter, the Veteran has not explained with any specificity what clear and unmistakable error was actually committed by the AOJ in rendering the September 1993 rating decision. See April 2017 Fully Developed Claim. He has only generally stated that CUE was committed, and that VA knew he had a back disability at the time of the earlier denial. The Board does not question that the Veteran has had a back disability since service, but without a more specific allegation about what constitutes CUE in the September 1993 rating decision, that decision cannot be revised. Based on a review of the evidence of record, the decision to deny service connection for a back condition made by the rater in the September 1993 rating decision was an exercise of judgment and did not rise to the level of CUE. The facts and circumstances known at the time of the rating were that the Veteran had a back disability and that he likely had some kind of in-service injury. However, there was some question as to when the in-service injury or event had occurred. In addition, at the time, there was no evidence of a causal link between the Veteran’s then-diagnosed back condition and his honorable period of service. The Board does not doubt that the Veteran’s back condition likely began years prior to the September 1993 rating decision and that, as he testified, he injured himself while working aboard a Navy ship. However, this information alone does not mean that the 1993 rating decision is the product of CUE. The fact that the Veteran’s back condition has persisted since his honorable service also does not rise to the level of CUE (despite the fact that it serves as part of the basis for the grant of service connection herein). Accordingly, the Board finds there was no CUE committed in the September 1993 rating decision and revision of the decision on that basis is not warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.