Citation Nr: 0004609 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-14 758 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for a right foot disorder on the basis of clear and unmistakable error (CUE) in a January 1948 rating action. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from August 1942 to November 1945. By rating action of January 1948, the Cleveland, Ohio RO denied service connection for a right foot disorder. By letter subsequently that month, the veteran was notified of the denial and of his appellate rights, but he did not appeal therefrom. This appeal arises from an October 1995 rating action of the New York, New York RO which found no CUE in the January 1948 rating action which denied service connection for a right foot disorder. By decision of July 1999, the Board of Veterans Appeals (Board) remanded this case to the RO to accord the veteran a hearing before a Member of the Board at the RO. The veteran thereafter failed to appear for a Board hearing scheduled at the RO on 10 January 2000. The case was thereafter returned to the Board for further appellate consideration. FINDING OF FACT The decision of the rating board in January 1948 denying service connection for a right foot disorder was not completely inconsistent with, and was not completely unsupported by, the evidence then of record. CONCLUSION OF LAW The decision of the rating board in January 1948 denying service connection for a right foot disorder did not involve CUE. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); Veterans Regulation No. 2(a), pt. II, par. III; VA Regulations 1008 and 1009 (effective 25 January 1936 to 31 December 1957); 38 C.F.R. § 3.303(c) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background On the service pre-enlistment examination in July 1942, it was noted that the veteran had a right clubfoot which had been the subject of an operation, and that he had first degree pes planus on the right. There was some physical limitation associated with the right clubfoot, postoperative status, and it was noted that the veteran was only qualified for limited service. Service medical records reveal that, in December 1942, the veteran had an orthopedic consultation concerning the right foot, and was returned to duty. In October 1943, he was treated for a sprain of the right ankle. Later in 1943, he was treated for pain in the right foot. In October 1944, he was seen for having twisted his right ankle. It was noted that he had a past history of repeated ankle sprains of his right clubfoot. The problem was treated with adhesive strapping. In September 1945, it was noted that he had severe pronation of the right foot, with some atrophy of the right leg. He was referred to the orthopedic clinic for further evaluation. The following day, it was noted that he failed to report for the orthopedic consultation. On examination prior to discharge from service in November 1945, it was noted that the veteran had been on limited service due to a club right foot. Clinical findings revealed a club right foot which was mildly symptomatic. It was noted to have existed prior to service. On VA examination in December 1947, the veteran stated that he had injured his clubfoot in 1944 due to hiking and walking. He reported that, at the current time, his leg ached whenever he put weight on the leg or did a lot of walking. He stated that the leg swelled at times, that it tired easily, and that it was weak. Clinical findings revealed that there was no pes planus or weak foot. There was no limitation of dorsiflexion of the right ankle. There was no hallux valgus, and the right arch was normal. The veteran complained of pain in the right foot just below the ankle, in walking. It was noted that the veteran had congenital eversion at the ankle. There was no tenderness or swelling. The diagnoses on examination included congenital eversion of the right foot. By rating action of January 1948, the RO denied service connection for congenital eversion of the right foot. II. Legal Analysis The veteran's representative has argued that it was CUE for the RO to have denied service connection for a right foot disorder in 1948, because the pre-service right foot pathology was aggravated by service. He cited the pertinent symptoms and clinical findings in service medical records, noted above, and contended that the pre-service right foot disability increased in severity during service. He contended that the presumption of aggravation applied, and that there was no clear and unmistakable evidence that the increase in severity of the veteran's right foot disability in service was due to natural progress of the disorder. This veteran's service was during wartime in World War II. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. A pre-existing injury or disease will be considered to have been aggravated by active wartime service where there is an increase in disability during such service, unless there is clear and unmistakable evidence that the increase in disability is due to natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). Congenital or development defects, as such, are not diseases or injuries within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). The law grants a period of one year from the date of notice of the result of the initial determination for the filing of an application for review on appeal; otherwise, that determination becomes final and is not subject to revision on the same factual basis in the absence of CUE. Veterans Regulation No. 2(a), pt. II, par. III; VA Regulations 1008 and 1009 (as in effect from 25 January 1936 to 31 December 1957). In Russell v. Principi, 3 Vet. App. 310 (1992), the U.S. Court of Appeals for Veterans Claims (Court) propounded a 3- prong test to determine whether CUE was present in a prior determination. The Court noted that either the correct facts as they were known at the time were not before the adjudicator, and that this constituted 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. Secondly, the Court noted that 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. Thirdly, the Court noted that 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. In Fugo v. Brown, 6 Vet.App. 40 (1993), the Court refined and elaborated on that test. The Court noted that CUE is a very specific and rare kind of error. It is the 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. Lastly, the Court noted that there is a presumption of validity to otherwise-final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. In this case, on the VA examination in December 1947, all that was identified in regard to the right foot was a congenital eversion at the right ankle. The Board notes that service connection may not be granted for a congenital or developmental defect. See 38 C.F.R. § 3.303(c). The rating board denied service connection for a right foot disorder in January 1948 because all that had been identified on the most recent medical examination was a congenital defect. The Board finds that such decision was consistent with the medical evidence and with the controlling regulation, and thus was not clearly and unmistakably erroneous. The Board notes that service connection cannot be granted for a congenital defect, even if it does increase in severity during service. As long as all that is present is a congenital defect, service connection may not be granted. Service connection may be granted when superimposed chronic acquired pathology develops during service. In such instances, the chronic superimposed acquired pathology is granted service connection based on incurrence. The Board further notes, in response to the contentions of the veteran's representative, that even if - for argument sake - the right foot pathology treated in service was acquired and not congenital, there still would have been a valid basis for denying service connection for a right foot disorder in 1948. Right foot pathology associated with physical limitation was noted on the pre-enlistment examination, as a result of which the presumption of soundness at enlistment did not apply. See 38 U.S.C.A. § 1111, 1137 (West 1991). The pre-service right foot disorder did exhibit symptomatic manifestations in service. However, on the service discharge examination, it was only mildly symptomatic, essentially as it was on the pre- enlistment examination. On VA examination in December 1947, clinical findings as to disability were essentially negative. There were no weakness, no limitation of dorsiflexion of the ankle, no flattening of the arch of the right foot, no swelling, and no tenderness. The clinical findings on the service discharge examination and on VA examination in December 1947 thus would not have compelled a conclusion that any pre-service acquired right foot pathology increased in severity during service. In conclusion, the Board finds no CUE in the January 1948 RO decision denying service connection for a right foot disorder, and the appeal is denied. ORDER Service connection for a right foot disorder based on CUE in a January 1948 rating action is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals