Citation Nr: 21032364 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-03 034A DATE: May 26, 2021 ORDER Revision is warranted in the May 2002 rating decision denying service connection for a back disability based on clear and unmistakable error (CUE). FINDINGS OF FACT 1. A May 2002 rating decision denied service connection for a back disability; that decision became final. 2. The May 2002 decision contained a mistake of fact of which reasonable minds could not differ that manifestly changed the outcome. CONCLUSION OF LAW The criteria for CUE have been met in the May 2002 rating decision, warranting revision. 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 June 1997 to August 1997, and from October 2000 to April 2001. This matter is on appeal to the Board of Veterans' Appeals (Board) from a February 2015 rating decision. A hearing was held by the undersigned Veterans Law Judge in September 2020. The procedural history for the Veteran's back disability claim begins with an initial claim for service connection prior to leaving service in April 2001. A May 2002 rating decision denied the claim based on a lack of permanent aggravation of a preexisting disability. The Veteran filed a Notice of Disagreement (NOD), and a Statement of the Case was issued in October 2002. Additional service treatment records (STRs) were added to the claims file in March 2003; however, these additional records were considered in a May 2003 Supplemental Statement of the Case (SSOC). The Veteran did not file a substantive appeal, new and material evidence was not received during the appeal period, and the decision became final. The Veteran filed a petition to reopen in November 2006. A September 2007 rating decision declined to reopen the claim based on a lack of new and material evidence. The Veteran appealed. A November 2011 Board decision remanded the claim for a hearing pursuant to a request from the Veteran. A May 2012 Board decision reopened the claim and remanded for a VA examination. Following that examination, a February 2015 rating decision granted service connection for a back disability based on an in-service incurrence effective November 8, 2006, the date of the petition to reopen. In February 2016, the Veteran filed an NOD appealing the effective date, asserting CUE in the May 2002 decision. 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. 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 Veteran has explained in his hearing, as well as previous correspondence of record, that he herniated a disc in his spine while training in early October 2000. He was ultimately discharged for this injury in April 2001. He underwent a Medical Evaluation Board (MEB), which was then referred to a Physical Evaluation Board (PEB). The PEB concluded that there was "compelling evidence" that the Veteran had a preexisting condition prior to service which was not permanently aggravated by his in-service injury. It is the Veteran's contention that the conclusion reached by the PEB was inconsistent with the evidence of record and not based in fact. The May 2002 rating decision essentially relies on and adopts the PEB decision; thus, the Veteran contends the RO failed to undertake its own analysis of whether the disability was preexisting and whether there was aggravation. Moreover, the RO failed to account for the contradictory evidence of record and the lack of evidentiary basis for which the PEB based its decision. First, the Board notes that to the extent the Veteran contends that the May 2002 decision is non-final pursuant to 38 C.F.R. § 3.156(c), that contention is without merit. As stated above, additional STRs were added to the claims file in March 2003; however, these were considered in the May 2003 SSOC. Subsequently added records were either duplicates or immaterial to the Veteran's claim. The Board finds that the May 2002 decision was final. Considering the law that existed at the time of the May 2002 decision regarding preexisting conditions, a veteran who served during a period of war, or who had peacetime service after December 31, 1946, is presumed to have been in sound condition except for defects, infirmities or disorders noted when examined and accepted for service. 38 C.F.R. § 3.304(b) (2001). Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (2001). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1) (2001). The burden of proof is on the government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service, and if the government meets this requirement, by showing that the condition was not aggravated in service. Vanerson v. West, 12 Vet. App. 254, 258 (1999); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Turning to the evidence of record at the time of the May 2002 decision, the Veteran's enlistment examination makes no notation of a back injury or disability prior to service. Thus, he is presumed sound upon entry, and only clear and unmistakable evidence that the disability existed before service will rebut this presumption. On October 4, 2000, two days after entry into active duty, a statement of medical examination reflects the Veteran developed lower back pain while participating in morning physical training. It was indicated that the injury was incurred in the line of duty. A profile questionnaire confirms the date and circumstances surrounding the injury during training, and notes the predicted diagnosis of a herniated disc. An October 8, 2000 record reflects low back pain radiating to the right great toe for less than a week. The assessment was acute low back pain. An October 10, 2000 treatment record reflects a complaint of back pain for one week. In a physical therapy evaluation that same day, it is indicated that the date of incident was 15 months prior, when the Veteran injured his low back moving an air conditioner. However, in a standardized form completed by the Veteran at that time, he also indicated that the pain began suddenly less than six weeks prior. An October 25, 2000 MRI confirmed degenerative disc changes, a posterior disc bulge at L3-4 and a disc protrusion at L5-SI. A treatment record from that same day reflects complaints of lower back pain for one year since an incident lifting an air conditioner. The assessment was chronic back pain from an old injury a year prior with current exacerbation. In a December 2000 treatment record, the Veteran endorsed lower back pain for the last three months, with new onset of urinary incontinence. In a January 2001 treatment record, the Veteran complained of low back pain and lower extremity sciatic pain since joining the Army a few months prior, with two episodes of urinary incontinence. He stated his back had "gone out" several times, and he stated that he had strained it a couple of times prior to enlisting. The physician, Dr. A., assessed the condition as lumbar degenerative disc disease exacerbated by high impact activity. He recommended a permanent lifestyle modification, issued a permanent profile, and initiated an MEB. Dr. A. also completed a form at that time indicating that recovery from this injury was "not expected." The MEB determined that the injury did exist prior to service but was permanently aggravated by service. The PEB concluded there was no permanent aggravation of a preexisting disability. The explanation was as follows: Despite what is recorded on the DA Form 3947, block 13e, [MEB determination], there is no evidence in the soldier's record to support a finding of permanent service aggravation. In fact, the MEB narrative summary states that it is expected that the soldier "...will experience slow improvement in his low back pain with cessation of high impact activity..." Based on a review of the objective medical evidence of record, the PEB finds that the soldier's medical and physical impairment prevents reasonable performance of duties required by grade and military specialty. There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service. The May 2002 rating decision found that back pain with lower extremity sciatic pain existed prior to service, and there was no evidence that the condition permanently worsened as a result of service. The factual portion of the decision largely consisted of a recitation of the PEB determination. In March 2003, a full medical report for the MEB drafted by Dr. A. was added to the claims file. Dr. A. described the Veteran's in-service injury as well as his statements that he had strained his back one or two times prior to enlisting. Dr. A. explained that the Veteran was experiencing pain on a daily basis that rendered him unable to tolerate any high impact activity. He had been issued a permanent profile that reflected these limitations. As far as prognosis, Dr. A. wrote that he expected the Veteran to experience slow improvement in his pain with the cessation of high impact activity over several years. The May 2003 SSOC considered these records and confirmed the denial. The RO made a mistake of fact in finding that the Veteran's disability was not aggravated by service. While the issue of whether evidence of preexistence met the stringent standard of clear and unmistakable evidence is certainly debatable, based on the October 25, 2000 clinical note, a reasonable mind could find that such evidence existed. However, the Board finds that reasonable minds could not conclude that the Veteran's disability was not aggravated by service. The objective medical evidence is clear that the Veteran suffered a debilitating injury in service with long-lasting effects. First, the Veteran continuously sought treatment for his back pain from the October 2000 incident until discharge in April 2001, and there are at least two records noting exacerbation. Second, Dr. A. recommended a permanent lifestyle modification and issued a permanent profile documenting the Veteran's limitations. Third, in opining on the Veteran's prognosis, Dr. A. indicated that recovery was "not expected." Fourth, it was determined that the Veteran's ongoing symptoms prevented him from fulfilling his military duties, necessitating discharge. Finally, the MEB found that the Veteran's disability was permanently aggravated by service. The PEB found otherwise, relying on Dr. A.'s statement that the Veteran will experience a "slow improvement" with cessation of high impact activity. However, the PEB left out the end of the sentence that read "after several years." Moreover, it is at odds with Dr. A.'s other indications that recovery was not expected, and the Veteran's condition was permanent. The RO appeared to rely entirely on the PEB determination in reaching its conclusion and made no mention of other evidence, to include accounting for the contradictory findings and the ample evidence of record supporting aggravation. While PEB determinations are evidence to be considered, they are not binding on VA, and all relevant evidence must be considered and addressed as necessary. Here, a finding of lack of aggravation is a mistake of fact that is blatantly inconsistent with several pieces of evidence of record. Such an error is one that is clear and unmistakable of which reasonable minds could not differ, and it manifestly changed the outcome of the claim. Thus, revision is warranted in the May 2002 decision based on CUE. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.