Citation Nr: 21024190 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-06 094 DATE: April 22, 2021 ORDER Entitlement to revision of a September 1995 rating decision denying service connection for a right hip disability based on clear and unmistakable error (CUE) is denied. REMANDED Entitlement to a compensable rating for limitation of flexion of the right hip is remanded. Entitlement to a compensable rating for limitation of extension of the right hip is remanded. FINDINGS OF FACT 1. In a September 1995 rating decision, the Veteran was denied service connection for a right hip disability. The decision became final. 2. The correct facts, as known at the time, were before the VA adjudicators in September 1995; the statutory and regulatory provisions extant at the time were correctly applied; and the Regional Office (RO) did not make a clear and unmistakable error of which reasonable minds could not differ. CONCLUSION OF LAW The criteria for entitlement to revision of a September 1995 rating decision denying service connection for a right hip disability on the basis of CUE have not been satisfied.  38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a).   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1993 to October 1994. These matters are on appeal to the Board of Veterans’ Appeals (Board) from an August 2016 rating decision. A hearing was conducted by the undersigned Acting Veterans Law Judge in February 2021; a copy of the transcript is of record. CUE Claim The Veteran’s procedural history for service connection for a right hip disability begins with a denial in a September 1995 rating decision for lack of evidence of worsening of a pre-existing condition. The Veteran did not appeal that decision and new and material evidence regarding the right hip was not submitted during the appeal period; thus, the decision became final. The Veteran filed a claim to reopen in October 2009; a January 2011 rating decision granted service connection for a right hip strain (secondary to her service-connected left hip disability) rated 20 percent disabling effective October 28, 2009. The Veteran did not appeal that issue, and that decision became final. In May 2016 the Veteran filed for an increased rating for her right hip disability, as well as revision of the September 1995 rating decision based on CUE. An August 2016 rating decision denied the CUE claim but granted separate noncompensable evaluations for right hip limitation of flexion and limitation of extension. The Veteran timely filed a Notice of Disagreement, and the claim is now under the jurisdiction of the Board. In her hearing, the Veteran (through her representative) contended that the September 1995 RO decision was based on a mistake of fact, as the decision stated that there were no complaints or treatment for the right hip in service when, in fact, there were multiple service treatment records (STRs), as well as an examination less than a year after discharge, reflecting right hip pain. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. 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, 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.   Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a).  For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.   CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (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, 235-36 (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. King v. Shinseki, 26 Vet. App. 433, 441 (2014).  The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442.   As a threshold matter, the Board finds that the argument advanced by the Veteran alleges CUE with the requisite specificity as it pertains to her right hip. See Simmons v. Principi, 17 Vet. App. 104 (2003).  The Board will therefore adjudicate the merits of her claim.  Initially, the Board notes it is undisputed that the Veteran’s right hip disability was preexisting and noted upon entry. If a preexisting disorder is noted upon entry to service, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306. A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 38 C.F.R. § 3.306 (a). Furthermore, temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to be considered aggravation of the condition, unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Turning to the evidence of record at the time of the September 1995 decision, the STRs contain an orthopedic consultation conducted in April 1992 upon notation of history of Legg-Perthes’ disease in the enlistment examination. The enlistment examination indicated no limitation of motion or limp of the lower extremities; however, the April 1992 consultation noted shortening of the right lower extremity and reduced limitation of motion. The physician explained that the Veteran had a history of Legg Perthes’ disease of the right hip and a history of a fracture of the left femur; she made a satisfactory recovery and denied any particular problems with the hips at the time. She walked with a normal gait, though the physician noted shortening of the right lower extremity. There was excellent musculature, she could stand on her heels and toes without difficulty, and neurological examination revealed no reflex or sensory changes. Her right hip flexion was to 110 degrees, extension to 20 degrees, internal rotation to 30 degrees, external rotation to 40 degrees, and abduction to 40 degrees. The physician opined that with the shortening and deformity of the right femoral neck and head, the Veteran was a candidate for future problems with the hip and only light activity was suggested. In June 1993 the Veteran complained of pain in both feet, which was listed as a complaint for neuroma. It was noted she still had not gotten a heel lift. In September 1993 the Veteran complained of pain in both feet for the prior two months. Her Legg-Perthes’ disease was noted in the record. An undated record indicates pain in the right foot; the assessment was plantar fasciitis or neuroma. In a November 1993 orthopedic consultation, she complained of pain in both feet. The provisional diagnosis was Morton’s neuroma, and the physician recommended light limited duty because the Veteran needed a heel lift for the right leg shortening. In May 1994 the Veteran sought treatment for pain in the left hip. A slight antalgic gait was noted. In June 1994 the Veteran was seen for a left hip injury. An antalgic gait was again noted; however, she indicated her hip felt better, and it was deemed resolved. In her September 1994 separation examination, the Veteran noted decreased range of motion and pain in the left hip, as well as the leg length discrepancy. Under a list of minor problems, she listed the left hip but not the right. In an October 1994 orthopedic consultation, she complained of chronic left hip pain. Ranges of motion were evaluated for both hips; for the right, she had 120 degrees flexion, 0 degrees extension, 40 degrees internal reduction, 50 degrees external reduction, and 50 degrees abduction. The right hip assessment was healed Legg-Perthes’. A VA examination was conducted in January 1995 shortly after discharge from service. The Veteran explained she was admitted to service after signing a waiver for her disabilities and that she was given a heel lift, though she was not wearing a lift at the time of examination. She endorsed pain in her hips after jogging twice a week. Her right hip flexion was 130 degrees, extension to 20 degrees, and abduction to 30 degrees. An X-ray revealed deformity of the neck of the right femur with shallower acetabulum on the right than the left and slight flattening of the lateral femoral head compatible with the history of Legg-Perthes’ disease. The examiner listed the diagnosis as Legg-Perthes’ disease on the right hip with limitation of motion. Upon review of the evidence, there was no CUE in the September 1995 decision denying service connection for a right hip disability for lack of aggravation. While the Veteran contends she complained of right hip pain in service and was treated for such, the STRs do not reflect complaints of right hip pain. Her right hip disability and leg length discrepancy was mentioned in several records; however, these medical visits were for her feet and left hip, and did not indicate a worsening of her right hip disability. The complaints of feet pain did not appear to be attributed to her right hip; the assessments were Morton’s neuroma and plantar fasciitis. Her documented ranges of motion in April 1992, October 1994, and January 1995, while varying slightly, do not reflect an increase in severity. While no limp was noted upon entrance and later records reflect an antalgic gait, these notations are in reference to complaints for left hip pain. It is also notable that the Veteran only listed her left hip, and not the right, as a problem at separation. The January 1995 VA examination does indicate bilateral hip pain after jogging. However, to the extent that it was error for the RO to state there were no right hip complaints despite the examination report, the error was not one of which reasonable minds could not differ, and would not have manifestly changed the outcome. Even taking the post-service complaint of pain into consideration, reasonable minds could certainly differ on whether it constituted a worsening of the Veteran’s preexisting condition. Altogether, the RO in September 1995 considered the available facts, applied reasonable weighing of evidence, and applied reasonable interpretations of the correct law at the time for the Veteran’s right hip disability. See 38 C.F.R. § 3.105(a); Russell, 3 Vet. App. 310; Fugo, 6 Vet. App. at 43-44. Her motion for CUE must be denied. REASONS FOR REMAND 1. Increased rating – limitation of flexion of the right hip 2. Increased rating – limitation of flexion of the right hip In the Veteran’s hearing, she explained that her hip has progressively worsened over time, and her symptoms have increased since the most recent 2016 examination. In the June 2016 examination, the Veteran complained of pain on all ranges of motion, though the examiner indicated the pain did not cause a functional loss. She had limited range of motion documented as 120 degrees flexion, 20 degrees extension, and 30 degrees abduction. Regarding flare-ups, the Veteran endorsed pain upon walking for prolonged periods and climbing stairs. The examination was conducted during a flare-up and following repeated use over time; the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during such circumstances. In Correia v. McDonald, 28 Vet. App. 158 (2016), which was decided the month after the examination took place, the Court of Appeals for Veterans’ Claims held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint.” In light of Correia as well as the Veteran’s testimony, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine her current level of impairment with regard to her right hip disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected right hip disability. All indicated testing should be accomplished and all symptomatology associated with such disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner’s report should describe objective evidence of painful motion, if any, during each test. It is emphasized it is not sufficient merely to indicate whether pain was present during one of the required ROM tests. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiners must estimate ROM during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced ROM during flares or repetitive use. In offering any opinion, the examiners must consider the full record, to include the Veteran’s lay statements. The rationale for any opinion offered should be provided. R. M. KELLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.