Citation Nr: 21023270 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-04 149 DATE: April 20, 2021 ORDER Whether there was clear and unmistakable error (CUE) in a November 18, 1985 rating decision, that denied service connection for bilateral pes planus, and in a September 14, 1987 rating decision, that denied service connection for low back, bilateral ankle, and left knee disabilities, is denied. Entitlement to service connection for bronchitis is denied. FINDINGS OF FACT 1. The Veteran was denied service connection for bilateral pes planus in a November 18, 1985 rating decision; he did not submit a timely Substantive Appeal, and new and material evidence was not received during the appeal period; the November 18, 1985 rating decision became final. The rating decision was consistent with and reasonably supported by the evidence then of record and existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. 2. The Veteran was denied service connection for low back, bilateral ankle, and left knee disabilities in a September 14, 1987 rating decision; he did not submit a timely Substantive Appeal, and new and material evidence was not received during the appeal period; the September 14, 1987 rating decision became final. The rating decision was consistent with and reasonably supported by the evidence then of record and existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. 3. The preponderance of the evidence is against finding that bronchitis began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for reversal or revision of the November 18, 1985 and September 14, 1987 rating decisions based on CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). 2. The criteria for establishing service connection for bronchitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to July 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal of August 2010 and September 2010 rating decisions of the Department of Veterans Affairs (VA). In January 2015, the Veteran requested a hearing before a Veterans Law Judge at his local VA office, but in April 2018, he withdrew his hearing request. In February 2019, the Board remanded the issues on the title page, and the issues of whether new and material evidence had been received to reopen a service connection claim for a low back disability, a service connection claim for a bilateral ankle disability, a service connection claim for bilateral pes planus and a service connection claim for a left knee disability, for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a November 2020 rating decision, service connection was granted for a low back disability, a bilateral ankle disability, bilateral pes planus and a left knee disability. As theses issue were granted in full, they are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). CUE Claim With CUE claims, 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or whether the statutory or regulatory provisions extant at that time were incorrectly applied. Second, 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.” Third, 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 Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The United States Court of Appeals for Veterans Claims (Court) has defined CUE as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Evidence that was not of record at the time of the rating decision at issue cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). The Court has also held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The essence of a claim of CUE is that it is a collateral attack on an otherwise final rating decision by a VARO. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant’s “extra-heavy burden” of persuasion in a claim of CUE). A decision by the Board becomes final on the date stamped on the face of the decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1100. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The November 1985 rating decision shows that the Veteran’s claim for pes planus was denied. It was noted that the Veteran’s service treatment records (STRs) showed that the Veteran had complained of pain in his feet in October 1984, November 1984 and in January 1985. Noted in the January 1985 report, was that the Veteran related his foot pain, existing prior to service, with prolonged standing and that he was provided arch supports. The September 1987 rating decision shows that the Veteran’s claims for service connection for lower back pain, leg pain, ankle pain, back weakness and leg weakness were denied. It was noted that STRs showed that the Veteran complained of leg pain in October 1984; an assessment of shin splints was provided. In November 1984, he complained of pain in his ankles. An assessment of soft tissue strain was provided. In January 1985, the Veteran complained of left knee pain. An assessment of a muscle strain and mild chondromalacia/ligament strain were provided. In February 1985, the Veteran complained of lower back pain. An assessment of a mild strain of latissimus dorsi was provided. A May 1985 medical note shows an assessment of a contusion of the left knee after the Veteran slipped on wet floor. The RO noted that at the time of the medical board determination, the Veteran had noted that knee and leg pain were not experienced prior to service. It was also noted that the Veteran had been on active duty for four months and any injury incurred had not caused any permanent damage. At the time of the October 1985 VA examination, there were no complaints relating to the lower back, legs, or ankles. March 1987 VA medical records showed that the Veteran complained of pain in his feet, knees, and lower back. The VA examiner noted that the pulses were within normal limits. It was determined that the Veteran’s complaint of lower back pain, knee pain and ankle pain were shown to have been acute conditions, resolved without residuals by the time of the Veteran’s discharge. In a July 2010 statement, the Veteran stated that the rating decision, dated in November 18, 1985, noted that the premise for denying his claim was based on the assumption that his in-service connected bilateral flat feet with severe pronation and a 15 degree calcaneal valgus that existed prior to entry, and were not aggravated by military service. The Veteran also stated that in the rating decision issued on September 24, 1987, the reason for denying his claim was that the evidence did not establish in-service connection for bilateral flat feet, residuals for left knee injury, bilateral ankle pain and lower back pain as delayed secondary conditions to my flat feet. The Veteran stated that at the time of his examination in Little Rock, Arkansas upon entry, there was no medical finding that he had flat feet. He stated that when he was asked if he had any problems with his feet, he reported that he had experienced problems with prolong standing at age seven or eight. From that point forward, he reported that his feet had never bothered him, and he did not have any difficulty wearing shoes or boots. The Veteran also stated that a medical review board statement included the notation that read “it is my opinion that since he has only had four months of active duty with a considerable portion of that being light duty status that any injury occurred has not caused any permanent damage. At this time, I do not feel there is any long term injury related to the service.” The Veteran stated that the statement did meet the definition of “sound judgment.” The four months in question invoked his participation in boot camp and that he was required to march and run in combat boots. He stated that he had completed two thirds of his training before he began wearing tennis shoes after damage had developed in his feet ankles and legs. The Veteran also stated that in the rating decision issued in September 14, 1987, in the second to last sentence of the first paragraph it stated the following, “It was the opinion of the board that since the Veteran only had four months of active duty, with a considerable portion of that in light duty status, that any injury occurred has not caused any permanent type damage.” The Veteran stated that this was the reason for denying service connection. The Veteran stated that the medical board did not discharge him from service and that on March 14, 1985, the medical board opinion was cancelled. It was determined that his flat feet existed prior to service and that he returned to full duty. He stated that his military occupation was changed from the Infantry to Supply/Warehouse helper and that this was an error, and, in fact, it was overlooked by the rating board. He indicated that his feet, ankle, and knee conditions continued to bother him for the remainder of my time in service. He also stated that he served ten months, not four months, and he was subsequently discharged based on a physical disability that was aggravated while in service. In an August 2017 statement, the Veteran asserted that the Board ignored and failed to apply the standards applicable to the presumption of soundness. The Veteran also stated that the RO had failed to provide an “accurate”, “objective” and “compassionate” review of all facts related to this claim as they had relied on fatally flawed documentation taken out of context to substantiate their rebuttal in denials. Regarding the Veteran’s assertions, first a review of the Veteran’s STRs shows that the Physical Evaluation medical report that reflects that the Veteran had served 4 months of active duty, was dated in January 1985. The Veteran entered service in September 1984; hence, the Veteran’s active duty service period, at that time, was correctly noted. Next, in the January 1985 medical report, it was noted by the examiner that the Veteran had indicated a complaint of foot pain during his high school years when standing more than 15 minutes. While the Veteran contends that this statement was a determination of the November 1985 rating decision, and that the Board “ignored and failed” to apply the standards applicable to the presumption of soundness with those applicable to direct service connection, a review of the November 1987 rating decision does not reflect that the RO determined that the Veteran was not sound upon entering service, and thus a presumption of soundness analysis was not required. Subsequently, regarding the September 1987 rating decision, the assertion by the Veteran that his claims were denied due to the evidence not establishing an in-service connection for his bilateral flat feet, residuals for left knee injury, bilateral ankle pain and lower back pain as delayed secondary conditions to the Veteran’s flat feet, is in error as the claims were not before the RO on a secondary basis. The claims were for direct service connection, and were adjudicated as such. Finally, the Board notes that a claim of CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo, supra. Thus, the Veteran’s contention that the RO failed to provide an “accurate”, “objective” and “compassionate” review of all the evidence and relied on flawed documentation taken out of context, is a mere disagreement with the RO’s evaluation of the facts before it. This contention does not give rise to a finding of CUE. In this case, there is no indication that the RO erred in the application of the law or the facts in rendering the November 1985 and September 1987 rating decisions. The Board finds that the November 1985 and September 1987 rating decisions were reasonably supported by the evidence of record at that time and were consistent with the laws and regulations then in effect. Here, the Veteran has failed to establish factual or legal error rising to the level of CUE in the November 1985 and September 1987 rating decisions that did not award service connection for bilateral pes planus, low back, bilateral ankle, and left knee disabilities. The RO sufficiently reviewed the evidence of record, and the Veteran is essentially disagreeing with the RO’s evaluation of the facts before it, which does not give rise to a finding of CUE. 38 C.F.R. § 20.1403(d). Consequently, the criteria have not been met for reversing or revising that prior rating decisions on the basis of CUE. Service Connection Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran contends that he developed bronchitis due to service, to include as due to exposure to contaminated water at Camp Lejeune. In support of his appeal, the Veteran submitted articles regarding water contamination at Camp Lejeune. The Veteran’s personnel records show that he served at Camp Lejeune. However, bronchitis or a respiratory condition, other than respiratory cancer, is not recognized by VA as diseases associated with exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. §§ 3.309(e), (f). Thus, service connection on a presumptive basis is not warranted. Notwithstanding the presumptive provisions, service connection may be established by showing that a disorder resulting in disability is, in fact, causally linked to exposure to contaminants in the water supply at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s STRs show an October 1984 medical record which notes that the Veteran complained of chest pains for 3 or 4 days. An assessment of bronchitis was provided. A November 1984 medical record shows that the Veteran complained of cough and chest pain. A post service VA treatment record, dated in May 2013, shows chest x-ray results of underlying changes of COPD/bronchitis. A June 2013 VA treatment note shows that no respiratory distress was found. A July 2013 VA treatment records shows that the Veteran had shortness of breath, noted as worse in the summer than winter, with no cough. A March 2015 VA treatment record shows that the Veteran complained of bronchitis and a productive cough. A March 2020 VA treatment note show that the Veteran had gone to the emergency room with the complaint of a sore throat and chest congestion. A discharge diagnosis of acute bronchitis was provided. The Veteran was afforded a VA examination in October 2020. A diagnosis of chronic bronchitis was provided. It was noted that the Veteran used inhaled medication for his condition. Asthma was indicated as a pulmonary condition. The VA examiner opined that it was less likely than not that the Veteran’s chronic bronchitis was incurred or caused by his military service. The VA examiner noted that the Veteran’s medical records were reviewed, including STR’s from October and November of 1984. Based on the medical records reviewed and the examination conducted, the Veteran had a diagnosis of chronic bronchitis since 2013. The STR’s from 1984 showed a diagnosis of bronchitis at that time, but it was not specified as chronic or acute. The VA examiner stated an opinion that the bronchitis discussed in the 1984 STR’s was “Acute bronchitis” because after 1984, the medical records were silent regarding any chronic respiratory issues until around 2010. From 2010 ‘till present there were symptoms consistent with a chronic lung condition, but no definitive diagnosis could be found. The October 2020 examination warranted a diagnosis of chronic bronchitis based on PFT results. The VA examiner stated that there was no evidence of chronicity to connect the Veteran’s chronic bronchitis to his military service. In a medical opinion, dated in January 2021, the VA examiner noted a review of the Veteran’s claims file, to include the Veteran’s October 2020 VA examination. The VA examiner noted that the Veteran’s symptoms were of asthma, in which he had been diagnosed with 2011. The VA examiner noted that she was unable to document the repeated episodes of bronchitis that the Veteran had reported. She indicated that the Veteran’s episode in the military had resolved prior to going to Camp Lejeune. The VA examiner noted that bronchitis was inflammation of the lining of the bronchial tubes, which carried air to and from the air sacs (alveoli) of the lungs. It was characterized by cough and mucus (sputum) production. The VA examiner noted that there was no medical evidence of chronic or recurrent bronchitis in the medical file. Patients with hyper reactive airway disease or asthma had a chronic inflammatory disease of the airways. Common symptoms included coughing, wheezing, shortness of breath, rapid breathing, and chest tightness. There was no medical evidence of asthma or breathing issues while in the military at Camp Lejeune. The VA examiner noted that occupational exposure long-term to chemical fumes, vapors and dusts in the workplace could irritate and inflame your lungs. The VA examiner stated that the Veteran was in the military for 7 months and mostly in the warehouse position and that he was not treated for exposure to chemicals or respiratory issues while at Camp Lejeune. The diagnosis of bronchitis in San Diego was an acute episode which resolved and there was no bronchitis at Camp Lejeune. Diagnosis of asthma was given 2011. Bronchitis was usually a virus spread by others around you and it could occur several times a year or rarely. It was not unusual in patients with asthma and allergies to have common URI develop bronchitic symptoms. The VA examiner stated that the Veteran’s bronchitis diagnosis was acute and resolved and that his bronchitis was not caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. The VA examiner included references to a number of articles to support her opinion. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for bronchitis. The record contains no competent opinion linking the Veteran’s respiratory condition to his active service. The October 2020 and January 2021VA opinions were provided based upon a comprehensive review of the claims file and examination of the Veteran, and the VA examiners provided adequate rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Further, there is no medical opinion to the contrary. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a respiratory disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the determining the diagnosis and etiology of the condition requires medical training and credentials. Thus, the Veteran’s opinion as to the cause of his claimed respiratory condition does not constitute competent evidence. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.