Citation Nr: 21026526 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 20-28 792 DATE: May 3, 2021 ORDER Due to a clear and unmistakable error (CUE), the August 1, 2019, decision of the Board of Veterans' Appeals (Board) is revised to grant service connection for a left hip disability. FINDINGS OF FACT 1. The August 2019 decision of the Board made a clear and unmistakable factual error in stating that a September 2011 post-deployment health assessment questionnaire included a denial from the Veteran of "swollen, stiff, or painful joints." 2. The August 2019 decision of the Board made a clear and unmistakable error in stating the record contained no evidence relating a left hip disability to his service by failing to consider an October 2017 addendum opinion of a contracted medical examiner that found that a left hip disability was more likely than not incurred by in-service events. 3. But for these clear and unmistakable errors, it is undebatable that the Board would have found in its August 2019 decision that the criteria for service connection for a left hip disability would have been met. CONCLUSION OF LAW The criteria for revision of the August 1, 2019, Board decision on the basis of CUE to grant service connection for a left hip disability have been met. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active duty service in the United States Army from March 2004 to June 2004 and in the United States Marine Corps from November 2010 to December 2011. This matter comes before the Board from the Veteran's May 2020 motion to revise the August 2019 decision of the Board that denied service connection for a left hip disability. Legal Standard A prior final Board decision must be reversed or revised where evidence establishes that there is 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 a court of competent jurisdiction and decisions on issues which have subsequently been decided by such a 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 United States Court of Appeals for Veterans Claims (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 At the outset, the Board finds that the appellant's motion to revise the Board's August 2019 decision satisfies the procedural requirements for a CUE motion set forth at 38 C.F.R. §§ 20.1404(a) and 20.1404(b). The Board finds it useful to begin its analysis by recounting the basis for the August 2019 denial of service connection for a left hip disability. It is worth mentioning that the Board's analysis of this claim for service connection is remarkably brief. The Board correctly stated that the Veteran had been diagnosed with a hip strain in November 2012 and subsequently underwent a physical evaluation board proceeding (Medical Board) in July 2013 where he had been determined to also have a hip impingement. While the Board acknowledged that the Veteran had attributed his hip disability to the rigors of his active duty service while serving a tour in Afghanistan, it stated that the Veteran had not reported swollen, stiff, or painful joint in a September 2011 post-deployment health assessment. It was not until a September 2012 post-deployment health assessment that the August 2019 decision stated was the first time that the Veteran began complaining of his hip. Due to this reported delay in complaints of symptoms and the reported ambiguity of the Medical Board statement that the Veteran's disabilities, to include disabilities other than his left hip, were incurred in service, the Board ultimately found that the record contained "no evidence" relating the Veteran's hip disability to service. The May 2020 motion primarily takes issue with the Board's statement regarding what is contained in the September 2011 post-deployment health assessment. This document was created while the Veteran was serving on active duty and relates to his period of service in Afghanistan. The record before the Board in August 2019 included clear statements from the Veteran attributing this time period during his active military service and when his hip difficulties developed. As the May 2020 motion indicates, the August 2019 Board decision misstated the contents of that September 2011 post-deployment health assessment. The eighth question of that questionnaire asked the Veteran to state whether he sought healthcare, was placed on quarters, received a profile, or was still bothered by a list of symptoms. Among the symptoms included in this form were "swollen, stiff or painful joints." While the Veteran reported at that time that he did not go to sick call or have quarters or a profile for any of these symptoms, he clearly selected the radio button on the form indicating he was "still bothered" by these symptoms. Applying these facts to the legal standard set forth in Damrel, the Board now finds that the August 2019 decision committed an undebatable error. The Board finds that there is no ambiguity regarding this form and that the Veteran clearly stated in the September 2011 questionnaire that he did experience ongoing joint symptoms. He also provided competent evidence that it was his left hip that was bothering him during his demobilization process during active duty. Contrary to the Board's statement in the August 2019 decision, this post-deployment assessment does represent evidence of in-service symptoms to which the current left hip disability may be related. The Board's statement that the record contained "no" evidence relating this disability to service is similarly erroneous. In the course of the Veteran's claim and appeal, VA arranged for him to attend medical examinations and obtained a series of medical opinions regarding whether a left hip disability related to service. He first attended a general medical examination in November 2012, at which he was noted to have a diagnosis of left hip strain. No opinion was obtained in connection with that examination. VA did, however, obtain a medical opinion from Dr. William Bray, a contracted examiner, in August 2013. At that time, Dr. Bray provided a relatively brief statement that none of the nine conditions for which the Veteran was then seeking service connection were related to service. After the August 2013 opinion, the Veteran attended a May 2017 hearing before the Regional Office (RO) at which he provided substantially more information regarding his contentions and his experiences with hip pain during service. As a result, the RO arranged for the Veteran to attend an additional in-person medical examination with Dr. Bray in August 2017. Dr. Bray initially provided a somewhat contradictory opinion relating to the etiology of the Veteran's left hip disability. In the first opinion from August 2017, Dr. Bray selected the box in the disability questionnaire form indicating the claimed condition (i.e. the left hip disability) was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the rationale for that opinion merely stated that there was "no significant evidence found in the medical records in service to account" for the hip condition and that therefore it was "less likely than not" related to service. Due to this apparent contradiction and the absence of any discussion of the Veteran's competent statements regarding his medical history, VA obtained an addendum opinion from Dr. Bray in October 2017. VA directed Dr. Bray to specifically consider the Veteran's September 2011 post-deployment health assessment in which he reported joint pain as well as the Veteran's statements regarding his history of hip symptoms. After considering all of the evidence of record, to include the notation in his post-deployment examination, prior strain mechanism, and ongoing symptoms, Dr. Bray finally concluded that "it would be more likely than not that the condition was incurred by in service events." The Board now finds that it is undebatable that this evidence, which represents the ultimate opinion of Dr. Bray after considering the entirety of the pertinent evidence regarding the onset and progression of a left hip disability, clearly relates that left hip disability to the Veteran's active duty service. Therefore, the Board finds that reasonable minds could not differ in determining that the Board erred in stating that no such evidence was of record at the time of the August 2019 decision. The Board now turns to the question of whether these undebatable errors would have resulted in a manifestly different outcome given the laws and facts known at the time of the August 2019 Board decision. No significant change has occurred regarding the laws governing service connection since that decision was issued. Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Additionally, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). (Continued on the next page) Applying this law to the facts at hand, the Board now finds that, based on the law and evidence of record at the time, had the August 2019 decision not made the undebatable errors regarding the September 2011 post-deployment health assessment and the October 2017 medical opinion, a manifestly different outcome would have resulted. The record contained clear, competent evidence that symptoms of a hip disability began during the Veteran's demobilization process after his deployment to Afghanistan and in fact was referenced in the post-deployment health assessment from September 2011. Although Dr. Bray had previously concluded otherwise, after a full review of the pertinent evidence, he did provide a competent medical opinion explicitly linking the left hip disability to service. No contradictory lay or medical opinion evidence was of record. As such, had the Board not erred in mischaracterizing the evidence of record, it is clear that it would have determined that each element for service connection set forth in Shedden was satisfied with respect to the left hip disability. The Board therefore finds that a clear and unmistakable error occurred in the August 2019 decision. The criteria to revise that decision are met and the decision is revised to reflect that the criteria for service connection for a left hip disability are met. 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.