Citation Nr: 21040260 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 19-03 239 DATE: July 2, 2021 ORDER The July 8, 1971 Board decision, which denied entitlement to service connection for residuals of a frostbite injury to both feet, does not contain clear and unmistakable error (CUE), and the motion for revision or reversal of that decision on that basis is denied. FINDING OF FACT In July 1971, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The criteria for revision or reversal of the July 1971 Board decision, which denied service connection for residuals of a frostbite injury to both feet, on the grounds of CUE have not been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-1404. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran (the movant) had active service from March 1969 to October 1969. This matter is before the Board on the moving party's December 2018 motion for revision on the grounds of CUE in a July 8, 1971 Board decision that denied entitlement to service connection for residuals of a frostbite injury to both feet. In March 2019, the Board denied the Veteran's December 2018 motion alleging CUE in the February 1971 Board decision, and the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court vacated and remanded the matter for action consistent with the terms of the Memorandum Decision, the remand instructions of the decision are provided in the analysis below. In the December 2018 motion for revision of the July 1971 Board decision based on CUE, the Veteran argued that the Board erred in finding that his frostbite residuals did not increase in severity during service and were not aggravated by service. In December 2018, the Veteran filed a motion for revision on the grounds of CUE in a July 8, 1971 Board decision that denied service connection for residuals of a frostbite injury to both feet. Specifically, the Board determined that a frostbite injury of both feet pre-existed service and was not aggravated by service. The Board found that the fact that the Veteran was found qualified for submarine duty and later considered as unfit for active duty by reason of his frostbite residuals did not establish aggravation, which must be based on the clinical data and objective findings as reflected by the entire record. The Veteran's December 2018 motion essentially alleges that the Board did not have factual support in finding that the foot condition did not increase in severity during his time in service. The Veteran's motion pointed to evidence in the record that indicated an increase in severity in the foot condition during service. The evidence cited to by the Veteran includes the fact that the Veteran's feet were examined at enlistment, the pre-service injury was noted, and no disability was found to exist. In September 1969, the Veteran reported that his feet were cold to the touch, mildly cyanotic, and markedly moist. He had constant pain and aching in both feet after walking any distance with accompanying tingling of all toes. It was noted that the Veteran was able to serve for five months with no complaints of foot pain and, when his foot pain returned, it was severe enough to warrant discharge. The Veteran's motion stated that the fact that the Veteran went from being able to perform his duties to being unable to perform his duties establishes that his condition was aggravated. 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. §§ 20.1400-20.1402. All final Board decisions are subject to revision on the basis of CUE except for those decisions that have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. 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. Clear and unmistakable error 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. 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). Review for clear and unmistakable error 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 clear and unmistakable error, 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 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. At the time of the July 1971 Board decision, the laws governing service connection are essentially the same they are today. Aside from minor technical revisions, the law governing the presumption of soundness is also essentially unchanged from the statutory and regulatory provisions in effect at the time of the Board decision in November 1971. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991) (wartime presumption of soundness in 38 U.S.C. §§ 310, 311, renumbered in 1991 to their current designations of § 1110, § 1111, was without substantive change since 1946). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (1971). A veteran will be considered to have been in sound medical condition upon entering active service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable (obvious or manifest) evidence demonstrates that a disease or injury existed prior to service and was not aggravated during service. See 38 U.S.C. § 1111; 38 C.F.R. §§ 3.303, 3.304 (1971). A pre-existing injury or disease will be considered to have been aggravated during active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. Moreover, for service after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during wartime service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. 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. § 3.306(a) (1971). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently, with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. 38 C.F.R. § 3.303(c) (1999). In March 2021, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in George v. McDonough, 991 F.3d 1227 (Fed. Cir. 2021), holding that Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), which held VA must show "clear and unmistakable evidence of both a pre-existing condition and a lack of in-service aggravation to overcome the presumption of soundness, does not apply retroactively." Thus, although VA must still show clear and unmistakable evidence of a pre-existing condition (i.e., the first prong), it is not required to show a pre-existing condition was not aggravated by service under the clear-and-unmistakable-evidence burden of proof. In other words, the Federal Circuit determined that the holding in Wagner was a change in interpretation of 38 U.S.C. § 1111, addressing the presumption of soundness. Therefore, it held that pre-Wagner, the proper application of the presumption of soundness did not require clear and unmistakable evidence that a pre-existing condition was not aggravated by service (i.e., the second prong). As to the first prong, in denying the claim for service connection for frostbite residuals in 1971, there is no dispute that the Veteran's frostbite residuals pre-existed service, as the Veteran contends that his pre-existing frostbite disability was aggravated during service. The records dated prior to service in January 1969 also confirm the Veteran's frostbite injury to the bilateral foot resulted prior to service. As to the second prong, the Board, in its July 1971 decision, referenced the specific evidence cited by the Veteran's attorney in support of the motion, but found that the in-service complaints were "a continuation of the preservice frostbite residuals and did not represent an increase in severity of the basic pathology." The Board acknowledges the Court's discussion in the November 2020 Memorandum decision that the 2019 Board's reliance on its own 1971 decision that was signed by three members of the Board, including a medical doctor, was an error, as the July 1971 Board opinion did not constitute medical "evidence" that could be weighed against other evidence of record, consistent with the Court's holding in Hime v. McDonald, 28 Vet. App. 1, 7-8 (2016). The Court determined that the 2019 Board's error in treating the 1971 Board decision as "evidence" and its failure to otherwise address the evidence of record reflecting frostbite condition frustrated judicial review. The Court also pointed out that the 2019 Board did not address the October 1969 Medical Board evaluation in denying the Veteran's CUE motion. The Board finds that the February 1971 Board decision does not contain CUE, as the 1971 Board reasonably concluded that the preponderance of the evidence is against the claim for service connection for residuals of frostbite injury to the feet. The Board's 1971 decision weighed the evidence then of record, including the October 1969 Medical Board's evaluation, service treatment records (STRs) and, treatment records, and determined that the Veteran's frostbite injury of the bilateral foot clearly and unmistakably pre-existed service, there was no increase in severity of the Veteran's pre-existing frostbite injury disability while in service, and thus concluded that the disability was not aggravated by service. The 1971 Board wrote there was a presumption of aggravation such that service connection was warranted only when there was an increase in disability during service. The 1971 Board concluded there was no increase in the severity of the disorder, which was based on the Veteran's symptoms of pain, swelling, tingling, cyanotic, and marked moisture, and the October 1969 Medical Board finding that such symptoms were not a result of aggravation of the pre-existing frostbite injury to the feet during service, which Medical Board determination was signed by three Medical Corpsman. The 1971 Board's conclusion that a continuation of the pre-service frostbite residuals did not represent an increase in severity of the basic pathology made by the 1969 Medical Board is supportable based upon the evidence of record and the laws extant at the time of the 1971 decision, which evidence is described below. The Veteran's symptoms of significant frostbite in the feet prior to service in January 1969 included frozen feet, white and blue toes and soles on both feet, discoloration, loss of sensation over the toes and distal portion of the soles, blistering, and pain. The Veteran also reported pain from the feet into his thighs. The following day, it was noted that the Veteran attempted to get up and go to the bathroom but had too much pain in his feet. The following day, the Veteran was much improved, but it was still painful. On discharge from the hospital on January 31, 1969, Dr. Borge explained that the Veteran, who had not yet entered active duty, sustained cold injury on the night of January 26, 1969, in the early morning when he became stuck in the snow bank and walked without overshoes about a mile in below-zero temperature weather. Dr. Borge noted the Veteran showed improvement with a return in sensation except of the toes of the left foot, which were slower in returning to normal. There was slight blistering evident on the soles of the feet on discharge, and he was advised to stay off his feet and to continue his medication. Physical examination at that time showed no problem other than the frostbite. He was discharged in a wheelchair. In the April 1969 submarine training physical examination, the Veteran reported a positive history of foot trouble, and the physician's summary documented foot trouble due to his frostbite injury with no sequalae. A September 1969 STR noted the Veteran reported swelling upon standing for any length of time and pain in the foot accentuated by any activity. As expected, the physician noted all of these things are accentuated by cold temperatures. Examination showed a dusky appearance to the toes and changes in most of the nails. Pulses were normal. Because of the above, the physician questioned whether the Veteran should have been accepted for active duty in accordance with regulations. A subsequent September 1969 STR noted the Veteran was diagnosed with frostbite of both feet that existed prior to service. He was hospitalized from September 17, 1969, to October 20, 1969. The September 1969 STR noted the Veteran experienced complications of frostbite for eight months. The Veteran reported trouble with swelling, standing, pain, aching, walking any distance, sweating of the feet, constant cyanosis of feet, brittle nails, tingling, and decreased healing. The Veteran denied any injuries. Physical examination noted the Veteran's symptoms in his feet included cyanotic, clubbing, edema, full pulses, coldness, dampness, prolonged return of colors when pressure applied, normal sensation, no swelling, redness, or tenderness. The physician noted that the Veteran experienced severe frostbite in January 1969, and the Veteran experienced residual aching, decreased circulation, sweating, and cyanosis of feet. The impression was circulatory damage and resultant deficiency of bilateral foot to frostbite. The Veteran was assessed with frostbite complications. The October 16, 1969 Medical Board evaluation noted the Veteran was admitted for frostbite of both feet. The Veteran reported that he was in excellent health until January 1969, when he was caught in the sudden snowstorm and was forced to walk 1.5 miles in three feet of snow at a temperature of 4 degrees Fahrenheit. The physician noted that the Veteran's feet initially turned purple, followed by marked erythema for three weeks. During the evaluation, the Veteran reported constant pain and aching in both feet after walking any distance, accompanied by tingling of all toes, increased by exposure to cold weather, with marked increase in sweating of both feet. Physical examination was normal with the exception of the lower extremities where both feet were cold to the touch, mild cyanotic, and markedly moist, the dorsalis pedis and posterior tibial pulses were palpable, and there was normal sensation throughout. The physician noted that despite adequate initial therapy, the Veteran had remained symptomatic. The Medical Board, which was comprised of three Medical Corpsman, concluded that the condition was neither incurred in nor aggravated by a period of active duty and that the Veteran was unfit for further military duty because of his frostbite of the feet and recommended that the Veteran be discharged from service. A May 1970 letter from Dr. Borge explained that after the Veteran's admission to the hospital for his frostbite injury in January 1969, there was progressive improvement, in the condition of his toes and soles of the feet with only slight blistering evident at the time of discharge. Dr. Borge wrote the Veteran was discharged on January 31, 1969 and advised to stay off his feet and continue his medication. The physician recalled that the Veteran's entry into the Navy was deferred because of the injury and that he was seen again on follow-up in February 1969, at which time, he showed progressive improvement of both feet. Dr. Borge noted that on the Veteran's last visit, it was felt that he would be ready for induction into the Navy on or about March 19, 1969. He wrote that since the Veteran's discharge from service, he reported that he had persistent pain after being on his feet all day with swelling of both the toes and feet. Dr. Borge stated the Veteran had a great deal of perspiration and difficulty with blisters because of this. At that time, his treatment consisted of meticulous foot care and avoidance of prolonged standing and walking. Upon separation, no permanent injury was noted, as the September 1969 STRs and the October 1969 Medical Board Evaluation documented that the Veteran experienced residuals of his pre-existing frostbite injury to his feet. The record reveals no serious injuries or accidents involving the feet, nor any permanent damage, during service, but rather document that the Veteran experienced similar symptoms in September 1969 that he had experienced prior to service, including pain, loss of sensation, discoloration, blistering, and cyanotic feet, which symptoms he had experienced contemporaneously with the January 1969 frostbite injury. At the time of his January 1969 pre-service frostbite injury to the feet, the Veteran was advised to avoid prolonged walking and standing, and he had trouble walking to the bathroom and was discharged in a wheelchair with diagnoses of frostbite of the feet in January 1969. In September 1969, the Veteran, again, experienced difficulty walking as a result of his January 1969 frostbite injury. In the May 1970 letter from Dr. Borge, he wrote the Veteran was advised to avoid prolonged walking or standing. Thus, after a review of the entire evidence of record, the 1971 Board's finding that a continuation of the pre-service frostbite residuals did not represent an increase in severity of the basic pathology was plausible. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt, supra. Given the physician's instructions to avoid prolonged standing and walking at the time of the pre-service frostbite injury and in close proximity to the Veteran's service discharge, it is reasonable that symptoms would remain symptomatic, as the September 1969 in-service evaluations and the October 1969 Medical Board Evaluation noted continued residual symptoms due to the Veteran's pre-existing frostbite injury. The October 1969 Medical Board, comprised of three medical professionals, determined that despite initial adequate therapy for his pre-existing frostbite injury to his feet, the Veteran remained symptomatic and opined it was not incurred or aggravated during service. Therefore, the Board finds that the 1971 Board's denial of the claim for service connection for residuals of a frostbite injury to both feet was supported by the evidence of record at that time. The Veteran's remaining argument on whether or not the pre-existing disability was aggravated by service is a disagreement with how the facts were weighed, which cannot be CUE. The 1971 Board weighed the evidence then of record, which expressly stated that the disorder pre-existed service, was not aggravated by service, had no increase in severity in service, and concluded that the disorder was not aggravated by service. It concluded that, as there was no aggravation of a pre-existing disability, service connection was not warranted, and denied the claim. Therefore, the Veteran's contention that the STRs showed the Veteran's frostbite injury to the feet was aggravated is a disagreement with how the 1971 Board weighed the evidence before it in reaching the conclusion that the disability pre-existed service and was not aggravated therein, which cannot be CUE. 38 C.F.R. § 20.1403(d). Moreover, it is reasonable to find that there was conflicting evidence as to whether there was in-service aggravation of a frostbite injury to the feet, such that the Veteran did not sufficiently prove any error was outcome determinative. In other words, whether service connection should have been granted at the time of the 1971 Board decision is debatable, and a debatable outcome is not clear and unmistakable. In conclusion, the Veteran has not identified a clear and unmistakable error in the July 1971 Board decision that, but for the error, would have resulted in a manifest change in the outcome; here, a grant of service connection for residuals of frostbite to the feet. Accordingly, the motion to revise or reverse the Board's July 1971 decision that denied entitlement to service connection for residuals of a frostbite injury to both feet on the grounds of CUE is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.