Citation Nr: 0006747	
Decision Date: 03/13/00    Archive Date: 03/17/00

DOCKET NO.  98-02 152A	)	DATE
	)
	)


THE ISSUE

Whether there was clear and unmistakable error in the June 
21, 1984 Board decision, which denied service connection for 
a back disorder.

(The issues of entitlement to service connection for a left 
hip condition, and whether new and material evidence has been 
submitted to reopen a claim of entitlement to service 
connection for a back condition are the subject of a separate 
Board decision, Docket No. 98-12 809)


REPRESENTATION

Moving Party Represented by:  Veterans of Foreign Wars of the 
United States


ATTORNEY FOR THE BOARD

K. J. Loring, Counsel



INTRODUCTION

The appellant had active military service from September 1940 
to November 1945.  

This matter comes before the Board on an August 1998 motion 
from the appellant for revision or reversal on the grounds of 
clear and unmistakable error (CUE) of a June 21, 1984 Board 
decision which denied service connection for a back disorder.


FINDINGS OF FACT

1.  In a June 21, 1984 decision, the Board denied entitlement 
to service connection for a back disorder on the basis that a 
chronic back disorder was not shown during service or for 
many years thereafter, until September 1982.

2.  The Board's decision of June 21, 1984 was not undebatably 
erroneous.


CONCLUSION OF LAW

The June 1984 Board decision did not contain CUE.  38 
U.S.C.A. § 501(a), 7111 (West 1991 & Supp. 1999); 38 C.F.R. 
§§ 20.1400, 20.1403 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board issued a decision on June 21, 1984, denying the 
veteran's claim for service connection for a back disorder.  
In July 1997, the veteran submitted a request to the RO to 
reopen his claim for service connection for a back condition.  
He stated that the claim should be reopened "in accordance 
with recent BVA decisions and with the acceptance of lay 
statements."  The RO denied the veteran's request on the 
basis that he failed to submit new and material evidence to 
reopen his claim.  (That appeal is the subject of a separate 
decision).  The veteran filed a notice of disagreement and 
responded to the RO that he was not reopening his claim, but 
requesting reconsideration by the Board.  He requested 
reconsideration on the basis that CUE was committed in the 
June 1984 Board decision.  He asserted that the Board failed 
to accept his lay statements in lieu of medical evidence of 
treatment for a back condition and continuity of 
symptomatology, resulting in CUE, particularly in light of 
the possibility that his records were destroyed by fire in 
1973.  He further stated that his claim for a back condition 
should be reopened and evaluated based upon "new criteria 
set forth by the CVA."  The veteran does not specify the 
criteria he is referring to, nor does he identify the 
"CVA," which the Board assumes is the United States Court 
of Appeals for Veterans Claims, which was formerly the United 
States Court of Veterans Appeals (Court).  With respect to 
the veteran's reference to "new criteria," continuing 
symptomatology, and the proposition that lay statements can 
be accepted in lieu of medical evidence, it appears that the 
veteran is alluding to the Court's interpretation of 38 
C.F.R. § 3.303(b) in the Savage v. Gober case at 10 Vet. App. 
488 (1997), which the Board will discuss in the analysis that 
follows.  

Pursuant to 38 U.S.C.§ 7111 (West 1991 & Supp. 1999), the 
Board has recently been granted the authority to revise a 
prior decision of the Board on the grounds of CUE.  A claim 
requesting review under this new statute may be filed at any 
time after the underlying decision is made.  The statute and 
implementing regulation provide that a decision by the Board 
is subject to revision on the grounds of CUE.  If evidence 
establishes the error, the prior decision shall be reversed 
or revised.  A request for revision of a Board decision based 
on CUE may be instituted by the Board on its own motion or 
upon request of the claimant.  38 U.S.C.A. § 7111; 38 C.F.R. 
§ 20.1400 (1999).  The Board's new authority applies to any 
claim pending on or filed after the date of enactment of the 
statute, November 21, 1997.  See 38 C.F.R. § 20.1400; 
VAOPGCPREC 1-98. 

Motions for review of prior Board decisions on the grounds of 
CUE are adjudicated pursuant to the Board's Rules of Practice 
at 38 C.F.R. §§ 20.1400-1411 (1999).  According to 38 C.F.R. 
§ 20.1404(b), the motion alleging CUE in a prior Board 
decision must set forth clearly and specifically the alleged 
CUE, 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 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 requirements of an allegation of CUE.  The Board has 
original jurisdiction to determine whether CUE exists in a 
prior final Board decision.  

In the implementing regulation, 38 C.F.R. § 20.1403, CUE is 
defined as:

(a) 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.

(b) The record to be reviewed 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.  (2) For a 
Board decision issued on or after July 21, 1992, 
the record to be reviewed includes relevant 
documents possessed by VA not later than 90 days 
before such record was transferred to the Board 
for review in reaching that decision, provided 
that the documents could reasonably be expected 
to be part of the record.  

(c) 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.
(d) Examples of situations that are not CUE are: 
(1) Changed diagnosis - a new medical diagnosis 
that "corrects" an earlier diagnosis considered 
in a Board decision; (2) Duty to assist - the 
Secretary's failure to fulfill the duty to 
assist; (3) Evaluation of evidence - a 
disagreement as to how the facts were weighed or 
evaluated. 

(e) CUE does not include 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.  

In other cases prior to promulgation of this regulation, the 
Court has defined CUE as an administrative failure to apply 
the correct statutory and regulatory provisions to the 
correct and relevant facts.  Oppenheimer v. Derwinski, 1 Vet. 
App. 370, 372 (1991).  The Court has also held that a finding 
that there was such error "must be based on the record and 
the law that existed at the time of the prior . . . 
decision."  Russell v. Derwinski, 3 Vet. App. 310, 313-14 
(1992).  Subsequently developed evidence may not be 
considered in determining whether error existed in the prior 
decision.  Porter v. Brown, 5 Vet. App. 233, 235-36 (1993).  
The mere misinterpretation of facts does not constitute clear 
and unmistakable error.  Thompson v. Derwinski, 1 Vet. App. 
251, 253 (1991). 

In the instant case, the moving party has not demonstrated 
that the Board's June 1984 decision contains CUE.  As noted 
previously, the veteran contends that the Board's decision is 
in error because he showed that he was treated for his back 
condition almost continuously after separation from service.  
He maintains that according to the Court's "new criteria," 
the lay statements of his back disability are sufficient to 
establish service connection.  In 1997, the Court provided an 
extensive and thoughtful analysis of 38 C.F.R. § 3.303(b), 
which allows that a veteran may show entitlement to service 
connection for a chronic condition, even if it is not 
diagnosed as chronic during service, when the condition is 
observed during service or any applicable presumption period, 
continuity of symptomatology is demonstrated thereafter, and 
competent evidence relates the present condition to that 
symptomatology.  Savage v. Gober, 10 Vet. App. 488, 498 
(1997).  However, while the Court noted that under 38 C.F.R. 
§ 3.303(b), medical-nexus evidence is not required for 
purposes of relating a veteran's present disability to 
service in applying the continuity of symptomatology 
provision, medical evidence is still required to demonstrate 
a relationship, because it does not necessarily follow that 
there would be a relationship between any present disability 
and the continuity of symptomatology demonstrated by the 
veteran, unless such a relationship is one as to which a lay 
person's observation is competent.  Savage, 10 Vet. App. at 
497.  While the veteran's friends could testify as to the 
presence of his back pain, neither the veteran nor his 
friends were competent to offer a medical diagnosis that 
could relate degenerative disc disease or arthritis to a back 
sprain during service.  The question of whether a present 
chronic disability is related to an injury during service is 
one which requires skill in diagnosis, and questions 
involving diagnostic skills must be made by medical experts.  
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

Moreover, in the context of CUE, the Court's analysis in the 
Savage case presents a changed interpretation of existing 
law, it does not show that the law was incorrectly applied at 
the time of the Board's decision.  It is clearly identified 
in 38 C.F.R. § 20.1403(e) as an example of what does not 
constitute CUE.  

In summary, the moving party has not shown that there was any 
medical evidence of record at the time of the 1984 decision 
suggesting a link between a post-service  back condition and 
service, and the Board decision of June 1984 was not 
undebatable erroneous in concluding that service connection 
was not warranted.  Even considering that the veteran's lay 
witness testimony established continuity of symptomatology of 
back pain from separation to the date of post-service 
diagnosis, he still would have had to have submitted medical 
evidence linking the diagnosed back disability to military 
service.  The record in 1984 showed a back injury in service 
but was void of any post-service medical evidence of a back 
disability until many years after service, and there was no 
medical evidence on file at that time that showed a causal 
link or neus between a post-service diagnosis of a back 
condition and any incident of service.   

The veteran's service medical records reflected a diagnosis 
of moderately severe lumbar strain during service.  He was 
discharged from service approximately 9 months later and 
there is no report of a separation examination of record.  
His original claim for service connection for a back 
condition was filed in May 1982, more than 35 years after 
service, accompanied by lay statements from friends and 
family attesting to the presence of a back problem after 
separation from service.  The lay statements include 
statements from a former spouse indicating that the veteran 
had had back problems since his service, and statements from 
two service friends, one of whom reported taking the veteran 
to the doctor at least three times.  However, the initial 
record of a diagnosis of arthritis and degenerative disc 
disease was from September 1982, when the veteran submitted a 
statement from a private physician.  The physician noted no 
specific abnormality of the back on physical examination, but 
X-rays revealed moderately extensive arthritis with 
degenerative disc disease at L2, L4, and L5.  The veteran 
also submitted a statement from a nurse attesting to the 
veteran's treatment for his back in her doctor's office from 
1956 to 1975.  The physician died in late 1975.

While the veteran asserts that these lay statements were 
sufficient to establish continuity of symptomatology of his 
back disability, the Board's failure to find such continuity 
did not rise to the level of CUE.  There is no error here 
which would have manifestly changed the outcome at the time 
that it was made.  Kinnaman v. Derwinski, 4 Vet. App. 20, 26 
(1993).  CUE "is a kind of error, of fact or of law, that 
when called to the attention of later reviewers, compels the 
conclusion, to which reasonable minds cannot differ, that the 
results would have been manifestly different but for the 
error."  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

In this case, the June 1984 Board decision reviewed all the 
evidence of record, including the veteran's September 1983 
hearing testimony, and entered a finding of fact that the 
veteran did not show the presence of a chronic back disorder 
until many years after service.  In reaching the conclusion 
that the veteran's back disorder was not incurred during 
service, the Board relied upon the evidence available and the 
lack of medical evidence establishing a link between the 
veteran's arthritis and degenerative disc disease diagnosed 
in 1982, and an acute lumbar strain of 37 years earlier.  
While the Board may have overreached in stating that the 
veteran's condition during service was acute and transitory, 
it would not have manifestly changed the outcome of the 
decision had the Board omitted this statement, as there was 
still no medical nexus evidence as required to establish a 
basis for service connection.  See Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 
1996).  

Although the veteran correctly asserted that the Court has 
allowed lay testimony to serve in lieu of medical evidence in 
some cases, he failed to recognize that the Court did not 
eliminate the well-established proviso that there still must 
be medical evidence to link the disability to service.  Epps 
v. Gober, 126 F.3d 1464, cert. denied, 524 U.S. 940 (1998); 
Caluza, 7 Vet. App. at 507.   While the service medical 
records show that the veteran had an episode of lumbar 
strain, as the Board found in June 1984, there was no medical 
evidence to show that the strain during service was related 
to the arthritis and degenerative disc disease diagnosed many 
years after separation.  

Moreover, while the Board may have breached its duty to 
assist in failing to make an additional effort to locate the 
veteran's service medical records and reported private 
treatment records, that failure still does not reach the 
level of CUE.  In this regard, the implementing regulations 
clearly provide that the Secretary's failure to fulfill the 
duty to assist cannot form the basis of CUE.  38 C.F.R. § 
20.1403(d).  The Court has specifically noted that a breach 
of the duty to assist cannot form a basis for a claim of CUE 
because such a breach creates only an incomplete rather than 
an incorrect record.  Caffrey v. Brown, 6 Vet. App. 377, 384 
(1994).

Accordingly, the veteran has failed to provide a basis to 
conclude that the previous Board decision was clearly in 
error.  The fact that the Board did not discuss the 
continuity of symptomatology does not provide a basis to 
conclude that the 1994 decision was clearly and unmistakably 
wrong.  There was simply no medical evidence of record to 
show a relationship between lumbar strain in 1945 and 
arthritis and degenerative disc disease diagnosed some 37 
years later.   

ORDER

The motion for revision of the June 1994 Board decision on 
the grounds of CUE is denied.



		
	R. F. WILLIAMS 
Member, Board of Veterans' Appeals