Citation Nr: 21032132 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-28 152 DATE: May 25, 2021 ORDER The January 26, 1970 Board of Veterans' Appeals (Board) decision, having been found to be clearly and unmistakably erroneous in denying the appeal of the claim for denied service connection for aphakia of the left eye, with defective vision, is revised to reflect an award of service connection for aphakia of the left eye, with defective vision. FINDINGS OF FACT 1. In a final decision dated January 26, 1970, the Board denied a claim for service connection for aphakia of the left eye, with defective vision. 2. The January 26, 1970 Board decision contained factual and legal errors in denying entitlement to service connection for aphakia of the left eye, with defective vision. 3. But for the factual and legal errors in the January 26, 1970 Board decision, the outcome would have been manifestly different and service connection for aphakia of the left eye, with defective vision, would have been granted. CONCLUSION OF LAW The January 26, 1970 Board decision denying entitlement to service connection for aphakia of the left eye, with defective vision, was clearly and unmistakably erroneous and is revised to reflect a grant of service connection for aphakia of the left eye, with defective vision. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, served on active duty from November 1959 to November 1968. This matter is currently before the Board on the moving party's May 8, 2019 motion for revision or reversal on the grounds of clear and unmistakable error (CUE) in the January 26, 1970 Board decision that denied a claim of entitlement to service connection for aphakia of the left eye, with defective vision. In a November 2019 decision, the Board denied the moving party's May 8, 2019 motion. The Veteran appealed the Board's November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the United States Court of Appeals for Veterans Claims (Court) granted an October 2020 Joint Motion for Remand (JMR) by counsel for the Veteran and VA, vacated the Board's November 2019 decision, and remanded this matter to the Board for action consistent with the JMR. Whether there was CUE in the January 26, 1970 Board decision that denied the claim of entitlement to service connection for aphakia of the left eye, with defective vision. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final 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 the United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE 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). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. 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. 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 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). A judicial decision that formulates a new interpretation of the law subsequent to a final VA decision cannot be the basis of a valid CUE claim. George v. Wilkie, 30 Vet. App. 364 (2019); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Although a judicial decision must be given full retroactive effect in all cases that are still open on direct review, it does not affect decisions that are final. Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) ("new legal principles, even when applied retroactively, do not apply to cases already closed"). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the moving party alleges CUE in a January 26, 1970 Board decision that denied a claim of entitlement to service connection for aphakia of the left eye, with defective vision. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The basic service connection laws and regulations at the time the January 26, 1970 Board decision was issued were as follows. Specifically, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service during a period of war. 38 U.S.C. § 310 (1958) (re-designated in August 1991 as 38 U.S.C. § 1110). 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). Under 38 U.S.C. § 311 (1958) (re-designated in August 1991 as 38 U.S.C. § 1110), a veteran "shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service." Older provisions of 38 C.F.R. § 3.304(b) in effect in 1970 omitted the second prong requirement of clear and unmistakable evidence of no aggravation of an injury, in order to fully rebut the presumption of soundness, as compared to 38 U.S.C. § 311. While these statutory and regulatory provisions were obviously in conflict, the regulation 38 C.F.R. § 3.304(b) was not invalidated in order to conform with the statute until the VA General Counsel issued VAOPGCPREC 3-2003, effective July 2003. See also Cotant v. Principi, 17 Vet. App. 116 (2003). In the May 2019 CUE motion, the moving raised three allegations of error in the January 26, 1970 Board decision. The moving party argues that, had such errors not been committed, the January 26, 1970 Board decision manifestly would have granted service connection for aphakia of the left eye, with defective vision. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). Specifically, the moving party alleges that the Board in the January 26, 1970 decision made errors of fact and law in its application of 38 U.S.C. § 311 (1958), the presumption of soundness, to the Veteran's aphakia of the left eye. The moving party argues that the Board should have afforded him the presumption of soundness because no cataract was noted on his entrance examination. The moving party contends that the Board in its January 26, 1970 decision mistakenly relied upon the Veteran's entrance examination which noted a pre-service injury to his left eye and amblyopia of the left eye with light perception only, when the relevant issue was whether the Veteran's entrance examination noted a cataract on his left eye. In the October 1959 Report of Medical History upon entrance to service, the Veteran indicated that he had "loss of eye sight in left eye" due to an accident when his sister flipped a fork into his eye several years prior. The October 1959 Report of Medical Examination upon entrance to service indicated that the Veteran had been diagnosed with amblyopia of the left eye. Distant vision was 20/20 in the right eye and "20/light" in the left eye, uncorrected by refraction. Amblyopia is impairment of vision without detectable organic lesion of the eye. Traumatic amblyopia is due to injury. See Dorland's Illustrated Medical Dictionary, 56, (27th ed. 1988); Satterfield v. Nicholson, No. 03-1504, slip op. (U.S. Vet. App. December 8, 2005). Thereafter, a June 1962 service treatment record indicated that the Veteran was diagnosed with a post-traumatic cataract of the left eye, after being struck on the left forehead one week ago and now having increased pain. An October 1962 separation examination indicated that the Veteran vision of the left eye was impaired, as a result of foreign body from 1952, and a lenticular opacity was noted. A July 1963 service treatment record indicated that the Veteran was seen for an eye examination, had no sight in his left eye, and an opaque lens was noted in the left eye. The Veteran "wants to know if operation will be helpful." An April 1965 service treatment record noted the pre-service injury to the left eye, that the left eye had light perception and "opaque lens due to old injury," but no cataract present. A November 1965 periodical examination indicated that the Veteran had post-traumatic blindness of the left eye, with uncorrectable left eye distant vision of "20/400+." A January 1966 service treatment record indicated that the Veteran sought emergency treatment after being hit with a marble in the left eye two days ago. The Veteran indicated that his left eye was now bothering him. He was described as having only light perception in the left eye with lens cataract from old injury. He was diagnosed with a partially healed abrasion of the cornea, nasally. The treatment provider was unable to view the left eye fundus. A subsequent January 1966 eye clinic service treatment record indicated that the cornea was non-straining left eye today. The abrasion had healed, and there was old scarring of the cornea of the left eye nasally. In March 1966 letter, a private physician, Dr. L.Y., noted the Veteran's pre-service left eye injury, resulting in a traumatic hyphemia, but initially clear lens. Dr. L.Y. also noted an April 1959 injury to the left eye when the Veteran struck his eye on the corner of this desk and was hospitalized again with a traumatic hyphemia. Dr. L.Y. stated that as of April 1960 the Veteran's uncorrected vision of the left eye was 20/400. Dr. L.Y. further stated that there was nothing in his records as of that date to suggest a cataract, which would suggest that any lens opacities the Veteran now has have developed since 1960. A March 1967 service treatment record indicated that the Veteran was two months post lens extraction of the left eye. A January 1968 service treatment record indicated that the Veteran's corrected vision was 20/30 in the left eye with contacts, and he was doing well wearing the lens 2 hours per day. A March 1968 service treatment record indicated that the Veteran was 2 weeks post-operation for surgical correction of strabismus, and left eye vision was 20/30. An undated service treatment record indicated that the Veteran had surgery for cataract. Following surgery corneal contact was attempted without success, and the Veteran had been advised that a scleral lens may be necessary. A diagnosis of left eye aphakia was noted. He was referred to the eye clinic at Walter Reed General Hospital in Washington, D.C., for evaluation. An April 1968 service treatment record indicated that the Veteran was struck in the left eye by a fork in 1952 with subsequent decrease in visual acuity. The enlistment physical examination indicated that visual acuity in the left eye was "light." The private physician's statement was noted, as well as the June 1962 service treatment record that first documented the cataract lens. Subsequently, the Veteran had an extracapsular extraction, total sector iridectomy, posterior synechrolysis and inferior sphincterotomy of the left eye. No vitreous was lost. He later underwent correction of strabismus. Visual acuity was correctable to 20/30 in the left eye. An April 1968 service treatment record indicated that the Veteran's visual acuity in the left eye was 20/40. He was doing well, and the physician planned to start contact lens trial. A June 1968 Medical Condition Physical Profile Record indicated that the Veteran had defective vision, with diagnoses of left eye aphakia, exotropia, and left hypertropia. He was not to drive military vehicles or be required to fire weapons other than for qualifications purposes. He was not to engage in close work for extended periods, or engage in any strenuous physical activity or long hours. These conditions were described as permanent. The October 1968 separation examination indicated that the Veteran's left eye distant visual acuity was 20/400, corrected to 20/50. In the corresponding October 1968 Report of Medical History, the Veteran noted that light still bothered his left eye, that his left eye seemed to tire easily and kept him from reading and doing close work for extended periods. The examining physician also noted that the Veteran required contact lens but had fitting difficulty and was advised by ophthalmology to seek VA follow up care. In the January 26, 1970 decision, the Board denied service connection for the left eye condition, based on a finding that "chronic pathology was not superimposed during service on the condition noted at the time of enlistment, aggravation at no time occurring, surgery entirely remedial." In its analysis, the Board relied heavily on the improvement in the Veteran's visual acuity during service, as documented in the entrance and separation examinations, stating that "it is obvious, therefore, that the veteran's visual loss was due to a pre-service disability and that there was no increase in disability during service." The Board further found that "although the veteran expresses some eye complaints such as the pupil having remained open following the surgery, contact lens irritation, etc., these are not unexpected results after an operation such as was performed and which restored his sight." Thus, the Board in the January 26, 1970 decision concluded that the Veteran's aphakia of the left eye was incurred prior to service and was not aggravated during service. As such, the Board committed legal and factual error in finding that the Veteran's aphakia was incurred prior to service and was not aggravated by service. As indicated above, aphakia was not noted on the Veteran's entrance examination; only amblyopia of the left eye and distance vision of "20/light" in the left eye, uncorrected by refraction, were noted. As such, the Board in the January 26, 1970 decision committed legal and factual error in finding that the Veteran's left eye aphakia was incurred prior to service. Furthermore, to the extent that the Board found that the Veteran's left eye aphakia clearly and unmistakably existed prior to service and was not aggravated by service, such finding was clearly and unmistakably not supported by the record. Specifically, aphakia is defined as an absence of the lens of the eye. Hazzard v. Brown, 4 Vet. App. 254, 256 (1993). As the record reflects that the Veteran's lens was removed as part of the cataract surgery during service, such lens was clearly present in the left eye at the time of the Veteran's entrance to service. Therefore, the Veteran's left eye aphakia did not clearly and unmistakably exist prior to service, and the Board in the January 26, 1970 decision committed factual error in finding that Veteran's left eye aphakia clearly and unmistakably existed prior to service. Turning to the issue of whether, but for such errors of fact and law, the outcome would have been manifestly different, the Board first notes that, for the reasons explained above, the Veteran is presumed to have been of sound condition upon entrance to service, other than the amblyopia and decreased visual acuity of the left eye that were noted on his entrance examination. Furthermore, the record clearly indicates that the Veteran's cataract of the left eye initially manifested during service and led to the surgical lens removal (diagnosed as aphakia) during service. See April 1968 service treatment record. Finally, the record clearly indicates that the Veteran experienced residual symptoms and impairment related to the aphakia, despite the overall improvement in his visual acuity. See October 1968 Report of Medical History (noting left eye light sensitivity, fatigability, functional impairments, and difficulty with fitting of contact lens); June 1968 Medical Condition Physical Profile Record (noting limitations on the Veteran's ability to drive, fire weapons, engage in close work for extended periods, or engage in any strenuous physical activity or long hours). As such, applying the law as in effect in 1970 to the evidence of record at the time of the January 26, 1970 Board decision compels the conclusion that the Veteran's left eye aphakia, with defective vision, was incurred in service. For these reasons, the Board finds that numerous factual and legal errors exist in the January 26, 1970 Board decision and that such errors are "undebatable" and of the sort which, had they not been made, would have manifestly changed the outcome at the time they were made. Per the law in effect at the time of the January 26, 1970 Board decision, discussed above, as the Veteran was entitled to the presumption of sound condition upon entrance to service, except as to the noted amblyopia and decreased visual acuity of the left eye, and was diagnosed with aphakia during service, as a result of surgery to remove cataracts that manifested during service, a grant of service connection for aphakia of the left eye, with defective vision, was in order pursuant to 38 U.S.C. §§ 310, 311 and 38 C.F.R. § 3.304(b). Thus, the Board finds clear legal and factual errors in the Board's January 26, 1970 decision denying service connection for aphakia, left eye, with defective vision, as the Board did not make appropriate factual findings and the statutory and regulatory provisions extant at the time were not properly applied. Moreover, had the legal and factual errors discussed above not been committed, the January 26, 1970 Board decision manifestly would have granted service connection under 38 U.S.C. §§ 310, 311 and 38 C.F.R. § 3.304(b) for aphakia, left eye, with defective vision. The Board acknowledges that the moving party identified other errors of fact and law in the January 26, 1970 Board decision. However, in light of this full grant of the benefit sought, no further discussion of such errors is warranted. In sum, the Board concludes that the aphakia, left eye, with defective vision, Board decision is clearly and unmistakably erroneous; therefore, the aphakia, left eye, with defective vision, Board decision should be revised, resulting in a grant of service connection for aphakia, left eye, with defective vision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1402-1404. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.