Citation Nr: 1134897	
Decision Date: 09/19/11    Archive Date: 09/23/11

DOCKET NO.  11-23 298	)	DATE
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THE ISSUE

Whether a November 26, 1999, Board decision, which denied service connection for a back condition as secondary to service-connected fractured pelvis, should be revised or reversed on the grounds of clear and unmistakable error (CUE). 


REPRESENTATION

Moving party represented by:  The American Legion


ATTORNEY FOR THE BOARD

S. M. Kreitlow



INTRODUCTION

The Veteran had active military service from November 1968 to November 1972.

This matter comes before the Board from arguments submitted in August 2011 by the Veteran via his representative in a Written Brief Presentation on the Veteran's claim seeking an earlier effective date for the grant of service connection for a lumbar spine disability on the grounds of clear and unmistakable error (CUE) in a Board decision issued in 1999.  The Board notes that the Veteran's representative did not specifically identify the date of the Board decision that was purportedly the subject of CUE, as required by 38 C.F.R. § 20.1404(a).  However, as there was only one Board decision issued in this case in 1999 (the decision issued November 26, 1999), the Board decides it will not dismiss the motion on that basis because there can be no confusion as to which Board decision the Veteran's representative is referring to, and will address the representative's arguments on the merits.


FINDINGS OF FACT

1.  In a November 1996 rating decision, the RO denied service connection for a back condition as secondary to service-connected disability of fractured pelvis; and the Veteran perfected an appeal as to that denial in January 1997.

2.  By a November 26, 1999 decision, the Board denied service connection for a back condition as secondary to the service-connected fractured pelvis.

3.  The correct facts, as they were known at the time of the November 26, 1999 decision, were before the Board, and were properly applied to the applicable laws.


CONCLUSION OF LAW

The November 26, 1999, Board decision denying service connection for a back condition as secondary to service-connected fractured pelvis was not clearly and unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties to notify and assist are not applicable to CUE claims.  See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004).  

A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative.  The motion must include the name of the veteran; the name of the moving party, if other than the veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board of Veterans' Appeals decision to which the motion relates.  If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains.  Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart.  38 C.F.R. § 20.1404(a).

The motion claiming CUE in a Board decision 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 an explanation of 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 the requirement of the previous sentence.  38 C.F.R. § 20.1304(b).  Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing under this subpart.  Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); 38 C.F.R. § 20.1404(b).

CUE is defined as:  "[A] very specific and rare kind of error, of fact or 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."  38 C.F.R. § 20.1403(a).

The record to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was issued.  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 deemed clear and unmistakable. 38 C.F.R. § 20.1403(c).

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 veteran with the development of facts relevant to his or her claim; (3) a disagreement as to how the facts were weighed or evaluated; or (4) a change in interpretation of a statute.  38 C.F.R. § 20.1403(d).

For CUE to exist, (1) either the correct facts, as they were known at that 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 the time were incorrectly applied, (2) the error must be "undebatable" and 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, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).

In its August 2011 Written Brief Presentation, the Veteran's representative submitted argument to the effect claiming CUE in the Board's November 26, 1999, decision denying the Veteran service connection for a back condition as secondary to his service-connected fractured pelvis.  The first argument is that the Board erred in not considering that any findings made in an August 1990 VA examination were by definition either part of or secondary to the pelvis disability because the request for examination specifically instructed the examiner to report only conditions related to or secondary to the pelvic fractures.  The second argument appears to be that the Board erred in relying on VA examinations conducted in 1996 because there were too many simple administrative issues left confused and because there was no file or record review by the AOJ or the three doctors (who conducted the VA examinations in 1996) to support a denial.  

In the November 26, 1999, Board decision, the Board stated on page four:

During an August 1990 VA examination, the veteran complained of low back pain for the preceding year or two.  August 1990 X-ray report found adequate alignment of the vertebral bodies with the disc spaces maintained.  No fractures were identified.  The radiologist's impression was unremarkable lumbar spine.  In a second August 1990 evaluation, the veteran reported having a slipped disc in 1989.  The impression was back pain, normal examination.  The report was negative for an opinion linking any back condition to the veteran's active service or a service-connected disability.  

The Board notes that the August 1990 VA examination report does not demonstrate that the examiner found any current low back disorder but merely assessed the Veteran to have "low back pain" without providing an opinion as to what was causing it.  Initially, the Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  Consequently, without a finding of any actual pathology for the Veteran's low back pain at that time, there was no condition for which service connection could be granted.  

Furthermore, the Board does not accept the representative's argument that all findings made by the examiner were related to the service-connected fractured pelvis despite the instruction in the examination request.  In addition to giving an impression of "low back pain," the examiner also concluded that the Veteran had cervical spondylosis.  This assessment was solely based upon the Veteran's report of having neck pain despite the fact that he did not relate it to the motor vehicle accident in service or to his service-connected fractured pelvis-just like the Veteran reported having low back pain for two years without any claim that it was related to his service-connected fractured pelvis.  Finally, the examination request made no mention of either a low back condition or a neck condition in advising the examiner.  Thus, the Board concludes that the examination of the Veteran's low back and neck by the examiner was based solely on the Veteran's complaints despite the fact there was no mention of him relating them to either the in-service motor vehicle accident or the service-connected fractured pelvis.  The examiner's inclusion of them in his diagnoses, therefore, was not per se an endorsement or opinion that they were residuals of the Veteran's service-connected fractured pelvis.

Consequently, the Board finds that there was no error in its rejection that the August 1990 examination finding that the Veteran's had "low back pain" was an opinion that it was secondary to the service-connected fractured pelvis.

As to the representative's second argument, the Board finds that this contention goes either to the duty to assist or to the weight given to the evidence.  As to the duty to assist, the representative appears to argue that the Board's reliance on three VA examinations conducted in 1996 was in error because none of the VA examiners had reviewed the Veteran's claims file.  The representative points to the fact that the examiners in 1996 stated that the Veteran's motor vehicle accident was in July 1970 (which was obviously reported by the Veteran) instead of December 1971 (as shown in the service treatment records).  The mere fact that the VA examiner's misstated the date of the Veteran's motor vehicle accident (which was clearly just a reiteration of the Veteran's faulty report) is not a basis upon which to find that these examiners were not credible or a reasonable ground to dismiss these examination reports as inadequate.  Furthermore, whether the examinations were inadequate goes to whether VA had complied with its duty to assist, which is not grounds to establish CUE.  38 U.S.C.A. § 38 C.F.R. § 20.1403(d)(2).  Thus, the Board concludes that this argument is unprevailing in establishing CUE in the November 26, 1999, Board decision.
With regards to the weight given these VA examinations, the Board finds this argument is also not a proper ground of CUE.  See 38 C.F.R. § 20.1403(d)(3).  Whether inadequacies in the 1996 VA examination reports affected their probative value (i.e., the weight given to the evidence) is in the Board's purview to determine and cannot be the basis for revision on the grounds of CUE.  Furthermore, a review of the decision and the discussion of the evidence as a whole establishes that the Board considered and weighed all the evidence, including private medical evidence in which the physician failed to render a medical opinion as to the etiology of the Veteran's low back pain, in rendering its decision, and that it chose to weigh the opinions of the VA examiner's as having more probative value than the private medical evidence.  Such a decision is not open to revision on the basis of CUE.

Finally, as to the contention that the Board was confused by the facts as they were at the time the November 26, 1999, decision was rendered, the Board disagrees and finds that the facts as set forth in the decision were clearly evidenced by the record.  Just because the VA examiners appeared to be in disagreement between the 1990 VA examination and the 1996 VA examinations is not adequate to establish that the Board was confused by the facts.  The representative's second argument fails to raise an adequate claim of CUE.  

Accordingly, the Board concludes that the Veteran cannot prevail on the arguments set forth by his representative and that revision of the Board's November 26, 1999, decision on the grounds of CUE must be denied. 

ORDER

The November 26, 1999, decision of the Board that denied service connection for a back condition as secondary to service-connected fractured pelvis should not be revised or reversed on the grounds CUE. 


                       ____________________________________________
	THERESA M. CATINO
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs




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