Citation Nr: 21027572 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-33 946A DATE: May 6, 2021 ORDER Entitlement to revision of an August 1, 2015, rating decision that denied service connection for left hip strain, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. Entitlement to revision of an August 1, 2015, rating decision that denied service connection for right hip strain, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is denied. Entitlement to revision of an August 1, 2015, rating decision that denied service connection for thoracic strain, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is denied. FINDINGS OF FACT 1. The August 1, 2015, rating decision that denied service connection for left hip strain, right hip strain, and thoracic strain became final because the Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. 2. The Agency of Original Jurisdiction (AOJ) considered the facts shown in the evidence of record and applied the correct law at the time of the August 1, 2015, rating decision, and there is no error that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. 3. The Veteran has not alleged an error of fact or law in the August 1, 2015, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. The August 1, 2015, rating decision that denied service connection for left hip strain was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The August 1, 2015, rating decision that denied service connection for right hip strain was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 3. The August 1, 2015, rating decision that denied service connection for thoracic strain was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 2013 to March 2014. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a February 16, 2021 videoconference hearing held before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the record. CUE The Veteran asserts CUE in an August 1, 2015, rating decision that denied service connection for left and right hip strain and for thoracic strain. The Veteran contends that she was diagnosed with the claimed disabilities in April 2014, and within the first year of her discharge from active service. The Veteran and her representative direct attention to a diagnosis of sacroiliac (SI) joint strain, and assert that it was reasonable to assume that it developed over the course of the Veteran's active service. The Veteran contends that a VA medical opinion should have been obtained. The Veteran's representative also asserts that the necessary elements to award service connection for the claimed disabilities were of record at the time of the August 2015 rating decision. The Veteran's representative also cites to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) regarding the Veteran's complaints of pain and limited range of motion. The Veteran further contends that chiropractic treatment records also contained a positive nexus opinion for her hip disabilities (as secondary to her back disability). A previous determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). An August 2015 rating decision denied service connection for left hip strain, right hip strain, and thoracic strain. The Veteran did not file a timely Notice of Disagreement challenging this determination within one year of the decision. Thus, the August 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. 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 (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 (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. The standard is not whether it is reasonable to conclude that the outcome would have been different. King v. Shinseki, 26 Vet. App. 433 (2014). 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 Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310 (1992). The evidence of record reflects that the Veteran submitted claims of service connection for hip and back injuries in a Fully Developed Claim (VA 21-526EZ), which was received by the AOJ on March 21, 2015. In a March 2015 Statement in Support of Claim (VA 21-4138), the Veteran reported that she sustained the claimed injuries during basic training, and worsened at Advanced Infantry Training such that she failed her physical fitness test, placed on a profile, and processed for discharge. The Veteran noted that she did not receive a separation physical examination. In conjunction with chiropractor records submitted in support of her claim, the Veteran stated that she participated in four ruck marches while in basic training and one ruck run in Advanced Infantry Training. The Veteran further stated that there were "a lot of occasions" in which she fell to the ground. The Veteran reported that while she did not complain in basic training, she did so while in advanced infantry training. The record includes a letter from the Veteran's mother, dated January 2015 (and received by the AOJ in March 2015). The Veteran's mother reported that the Veteran called her on several occasions and complained of difficulties performing her exercises due to back pain. A review of the Veteran's service treatment records does not show any complaints or treatment for the claimed hip or back disabilities. Military personnel records from February 2014 reflect that the Veteran failed three consecutive Army physical fitness tests. Records during this period also note that one of the fitness tests was rescheduled as the Veteran was placed on a profile due to a tooth extraction. In March 2014, it was determined that the Veteran be separated from service prior to the expiration of her term of service. Following her separation from active service, the record thereafter reflects that the Veteran sought private chiropractic treatment from April to June 2014. In an April 2014 questionnaire, the Veteran endorsed back pain since February 2014. In April 2014, the Veteran was diagnosed with thoracic spine strain, thoracic segmental dysfunction, lumbar spine strain, lumbosacral segment dysfunction, SI joint strain, and sacral segmental dysfunction. The Veteran was afforded VA hip, back, and muscle examinations in June 2015. The VA hip examination report referenced a 2015 diagnosis of bilateral hip strain. The Veteran reported that it began right after completing a ruck sack march while in basic training, and that the hip pain continued for the rest of her enlistment. The VA examiner noted that imaging studies were reviewed but did not document degenerative or traumatic arthritis. At the VA back examination, the Veteran reported that the onset of her respective symptoms was in November 2013. Similarly to the hips, the Veteran stated that it began while completing a ruck sack march while in basic training. The VA examiner referenced the Veteran's 2014 diagnoses of SI joint, thoracic, and lumbar strain. As with the hips, the VA examiner noted no documented arthritis upon review of imaging studies. A VA muscle examination report reiterated the Veteran's reports of hip and back injuries due to an in-service ruck march, but VA examiner did not render a muscle-specific diagnosis. The VA examiner who performed the hip, back, and muscle examinations did not render nexus opinions. In an August 1, 2015, rating decision, the AOJ denied service connection for the left and right hip strains and for thoracic strain. The AOJ determined that the evidence did not show that an event, disease, or injury in service, as the Veteran's service treatment records did not contain complaints, treatment, or diagnoses for the claimed disabilities. The AOJ further determined that the claimed disabilities were neither occurred in nor were caused by service. The AOJ, in pertinent part, considered the Veteran's service treatment and military personnel records, March 2015 Statement in Support of Claim, private chiropractor records, the Veteran's mother's March 2015 lay statements, and June 2015 VA examination report. The Veteran's CUE arguments are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator in the August 2015 rating decision. However, "[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it." Evans v. McDonald, 27 Vet. App. 180, 185, 187 (2014). The Board acknowledges the Veteran's assertions that she had post-service diagnoses of her claimed disabilities within the first post-service year. However, the AOJ considered the Veteran's private chiropractic records as indicated on the face of rating decision. Further, AOJ did not deny the Veteran's claims on the basis of no current disability, but rather that there was no documented injury to the hips or back in the Veteran's service treatment records, nor were there any nexuses to active service. As discussed above, service treatment records were absent of complaints or treatment for the Veteran's claimed hip and back disabilities. To the extent that the Veteran's representative contends that the necessary elements to award service connection were of record at the time of the rating decision, a required element in a claim of service connection is a nexus to service. The record at the time of the August 2015 rating decision did not contain competent, positive medical nexus opinions that linked the Veteran's disabilities to service. A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). While it may be argued that the AOJ should have sought a medical opinion from the VA examiner, such is an argument that the VA failed in its duty to assist the Veteran, which does not apply in CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). Based upon the reasoning contained within the August 2015 rating decision, the AOJ did not commit clear and mistakable error based upon the record and the law that existed when the decisions were made. In summary, there is nothing in the record to support that the AOJ did not apply the appropriate law or did not have the correct facts before it at the time of its August 2015 rating decision and, therefore, the Veteran's motions for revisions of that decision must be denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.