Citation Nr: A25035354 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210804-176478 DATE: April 16, 2025 ORDER Entitlement to revision of a March 2009 rating decision on the basis of clear and unmistakable error (CUE) is denied. FINDING OF FACT The March 2009 rating decision that denied service connection for a left knee condition did not include an outcome-determinative error of fact or law when considering the evidence of record at that time. CONCLUSION OF LAW The criteria for revision of the March 2009 rating decision on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1996 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran submitted a timely notice of disagreement (VA Form 10182) and requested appellate review of the May 2021 rating decision via the Board's evidence-submission docket. Under the provisions of the Appeals Modernization Act (AMA), the Board's review of cases under the evidence-submission docket is generally based on a review of evidence of record at the time of the decision on appeal and evidence submitted by the claimant, or any authorized representative, with the notice of disagreement or within 90 days following receipt of the notice of disagreement. See 38 C.F.R. § 20.303. Yet, the Board notes its CUE analysis is limited to evidence considered by the Agency of Original Jurisdiction (AOJ) in the initial decision alleged to contain CUE, which in the present appeal is the previously noted March 2009 rating decision that denied the Veteran's initial November 2008 left knee service connection claim. Analysis The Veteran seeks an effective date prior to June 7, 2013, for his now service-connected left knee patellofemoral syndrome, asserting a March 2009 rating decision that denied his initial November 2008 left knee service connection claim should be revised on the basis of CUE. The Board notes the finality of the March 2009 rating decision was previously adjudicated in a July 2021 Board decision; therefore, the context of this appeal is limited to the collateral attack of the finality of the March 2009 rating decision via the CUE claim first adjudicated by the AOJ in May 2021 rating decision on appeal. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior rating decision will be reversed or amended. Id. 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. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). There is a three-part test for CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the 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. See Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision). 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, 43-44 (1993). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "[E]ven where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo, 6 Vet. App. at 43-44. When challenged, the final decision benefits from a strong presumption of validity. See id. at 44. The challenger bears an "extra-heavy" burden of persuasion in showing error in the final decision. Berger v. Brown, 10 Vet. App. 166, 169 (1997). The March 2009 rating decision denied service connection for a left knee condition on the basis that the evidence of record at that time failed to establish the presence of a current disability. The March 2009 rating decision explicitly acknowledged in-service treatment for patellar tendonitis with a profile in March 1999; however, the decision noted a lack of post-service treatment as the basis for its finding that the current disability element had not been met. In reaching this finding, the AOJ noted the available VA treatment records did not document any treatment for a left knee condition, as well as the Veteran's failure to respond to pre-decisional requests for any additional evidence to support his claim. Thus, there is no indication the correct facts were not before VA adjudicators since the March 2009 rating decision explicitly discussed the available evidence at that time. The Veteran has asserted VA adjudicators overlooked evidence showing a chronic knee disability at his separation from service, but his July 1999 separation examination report (Standard Form 88) fails to document a left knee condition despite his reported medical history noting the prior profile, which, again, was clearly considered by VA adjudicators in the March 2009 rating decision. As such, the Veteran's assertion is simply a disagreement with how the evidence was weighed or evaluated and cannot provide the basis for revision of the otherwise final March 2009 rating decision. The Board acknowledges the AOJ did not schedule the Veteran for an examination prior to the March 2009 rating decision; however, the Board notes a breach of the duty to assist cannot constitute CUE; therefore, any inadequacy in the development of evidence at the time of the March 2009 rating decision is irrelevant in the context of the current appeal. See Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). In sum, the record fails to establish an outcome-determinative error of fact or law in the March 2009 rating decision that denied the Veteran's initial November 2008 left knee service connection claim. There is no indication the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. To the contrary, VA adjudicators discussed the established factual history of the Veteran's left knee claim in the March 2009 rating decision and reasonably explained the basis for the determination that a current disability was not established at that time. The specific assertion raised by the Veteran is simply a disagreement with how the AOJ weighed or evaluated the facts at the time of the March 2009 rating decision, which does not rise to the level of CUE. The favorable examination report and nexus opinion that resulted in service connection for left knee patellofemoral syndrome were not received until May 2014 and therefore cannot be considered in the Board's CUE analysis. The Board again reiterates its CUE analysis is limited to the evidence of record at the time of the March 2009 rating decision even if such record was incomplete due to a breach of VA's duty to assist. Accordingly, revision of the March 2009 rating decision on the basis of CUE must be denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.