Citation Nr: 0007429 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-17 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether a March 14, 1996 rating decision which assigned a 10 percent rating for bilateral pes planus involved clear and unmistakable error (CUE). 2. Entitlement to service connection for a bilateral hip condition. 3. Entitlement to service connection for a bilateral knee condition. 4. Entitlement to service connection for an bilateral ankle condition. 5. Entitlement to service connection for hallux rigidus of the left great toe. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from November 1961 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which found no CUE in a March 14, 1996 rating decision assigning a 10 percent rating for pes planus, and denied as not well grounded claims for service connection for bilateral hip, knee, and ankle conditions, and hallux rigidus of the left great toe. FINDINGS OF FACT 1. In March 1996, a RO rating decision assigned a 10 percent disability rating for service-connected bilateral pes planus; the veteran was notified of that decision, and he did not enter notice of disagreement with that decision within one year. 2. The outcome of the rating decision of March 1996 was adequately supported by the evidence then of record and was not undebatably erroneous. 3. The veteran has not specifically alleged legal or factual error in the March 14, 1996 rating decision. 4. There is no competent medical diagnosis of record to demonstrate a current bilateral hip or knee disability. 5. There is no competent medical evidence of record to demonstrate a nexus between the veteran's claimed bilateral hip, knee, and ankle disorders, or hallux rigidus of the left great toe, and any injury or disease in service, including parachute jumps, or a service-connected disability of bilateral pes planus. CONCLUSIONS OF LAW 1. The March 14, 1996 rating decision, which assigned a 10 percent disability rating for bilateral pes planus, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 1131, 5107, 5109A, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a) (1999); Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. The veteran's claims of entitlement to service connection for bilateral hip, knee, and ankle conditions, and hallux rigidus of the left great toe are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. CUE The veteran has alleged that a March 1996 rating decision's assignment of a 10 percent disability rating for bilateral pes planus contained CUE. In that decision, the RO assigned a 10 percent rating for bilateral pes planus based on findings that there was no marked deformity, pain on manipulation and use, swelling on use, or characteristic callosities. In March 1996, the RO notified the veteran of the rating decision. The veteran did not initiate an appeal of the decision, and the March 1996 rating decision therefore became final. 38 U.S.C.A. § 7105(c). Applicable regulations provide that previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See 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. Principi, 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 CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It 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). The veteran contends that the March 1996 rating decision should have assigned a rating in excess of 10 percent for his service-connected bilateral pes planus because his condition at that time supported a higher rating. However, he has not proffered a legally cognizable claim of CUE in the March 1996 rating decision. In a May 1997 claim, the veteran contended that the March 1996 rating decision contained CUE and he wanted "an increased rating from that date he says his condition at that time was [supported or supposed] to be a higher rate." On a May 1997 Statement in Support of Claim, the veteran requested "reconsideration" based on CUE. At the February 1999 personal videoconference hearing before the undersigned member of the Board, the veteran testified about the incurrence and diagnosis of pes planus in service, and that he was currently suffering from bilateral pes planus, including the use of a prosthetic device. The veteran's representative argued that "correction of the previous rating is warranted and are directly related to the trauma which he sustained during parachute jumps while on active military service." On a January 1999 VA Form 646, the veteran's representative argued that "the evidence of record supports entitlement to the next higher evaluation" beyond the 10 percent rating for bilateral pes planus assigned by the March 14, 1996 rating decision. In order to reasonably raise a claim of CUE, a claimant must identify the alleged error with specificity. Fugo at 43-44. Moreover, unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons as to why one would be compelled to reach the conclusion that the result would have been manifestly different but for the alleged error. Id. If reasonable minds could come to different conclusions in the decision which is claimed to be erroneous, then that decision is not subject to a claim of CUE. Id. In other words, if the error alleged is not the type of error that, if true, would be CUE on its face; or if the claimant is only asserting disagreement with how the RO evaluated the facts before it; or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, then the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The Board finds that the outcome of the rating decision of March 1996, assigning a rating of 10 percent for bilateral pes planus, was adequately supported by the evidence then of record and was not undebatably erroneous. The veteran's contentions reflect mere disagreement with the way the RO, in its March 1996 rating decision, weighed the evidence to determine a rating in excess of 10 percent was not warranted. A claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who attempts to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Court has indicated that a CUE is a very specific and a rare kind of "error" of fact or of law that is more than a simple disagreement as to how the facts were weighed or evaluated. It must be an 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. Fugo at 43-44, citing Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). For the reasons indicated, the Board finds that the veteran has not raised a claim of CUE with the requisite specificity of error. The veteran's claim of whether the March 1996 rating decision, in assigning a 10 percent disability rating for service-connected bilateral pes planus, involved CUE, is without legal merit and is, accordingly, denied. See Sabonis, supra. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Before the Board may address the merits of a veteran's claim, however, it must first be established that the claim is well grounded. In this regard, a person who submits a claim for VA benefits shall have "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). However, as the veteran has not presented a well-grounded claim, the duty to assist the veteran, to include an additional VA compensation examination, does not arise. Epps v. Gober, 126 F.3d 1464 (1997); see also Anderson v. Brown, 9 Vet. App. 542 (1996); Slater v. Brown, 9 Vet. App. 240 (1996); Franzen v. Brown, 9 Vet. App. 235 (1996). In order for a service connection claim to be well grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Epps at 1468. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has indicated that, alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such a condition. Savage v. Gober, 10 Vet. App. 488 (1997). That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) "if 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 at 498. Secondary service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). However, claims for secondary service connection must also be well grounded. See Libertine v. Brown, 9 Vet. App. 521 (1996); Jones v. Brown, 7 Vet. App. 134, 138 (1994). In a claim received in July 1997, the veteran requested service connection for bilateral hip, knee, and ankle conditions, claiming that these were incurred as the result of multiple parachute jumps in service. Through his representative, the veteran also contends that service connection is warranted for hallux rigidus of the left great toe, which is also "directly related to a trauma received during a parachute jump." In what appears to be an alternative theory of service connection, a May 1997 Statement in Support of Claim, the veteran wrote that he had "secondary and/or latent delayed effects," of reoccurring pain and pain when working, loss of mobility of the big toe, and stiffness in the feet that radiated to the knee and hip joint. In his substantive appeal on a VA Form 9, received in October 1998, the veteran wrote that the injury to the great toe caused other conditions, including bilateral tarsal inflammation, spastic foot, loss of movement, heel spurs, and arthritis of the great toe, ankle, knee, and hip joints. However, what is lacking in this veteran's case is competent medical evidence of record to relate his current disorders to service or a service-connected disability. Service medical records reflect multiple complaints and treatment for the veteran's bilateral pes planus (for which service connection has been established). Service medical records are otherwise negative for complaints, findings, or diagnoses of bilateral ankle, knee, or hip pain or disorders, or hallux rigidus of the left great toe. In 1965, the veteran was treated for ingrown toenail of the left great toe. At the service separation examination in March 1966, the veteran was clinically evaluated as having normal feet, lower extremities, and spine. In a written statement in April 1973, the veteran reported that, after service, he worked as a postal employee and, "because of the prolonged standing and walking aggravated by lifting heavy parcels, I was physically forced to resign" in January 1973. At a VA examination in June 1973, the veteran complained of increased pain in both feet, with a sharp pain at times spreading up nearly to the joints of his knees, with weak muscles. X-rays revealed no arthritic changes and, aside from bilateral pes planus, no bony fracture or deformity. The diagnosis was symptomatic bilateral pes planus. VA outpatient treatment records reflect that in March 1988 the veteran was diagnosed with neurotrophic bunion pain. In April 1988 the veteran was diagnosed with bilateral PFFR, symptomatic pes planus, and hallux limitus of the left. In July 1988 the veteran denied he was on any medications. In 1988, he underwent a Mayo-Keller bunionectomy of the left hallux. In January 1990 the veteran reported a 4 week history of right foot weakness. In February 1990 the veteran reported a 4 week history of right ankle instability and a history of weakness of the right ankle, and was diagnosed with right ankle strain. Physical examination revealed a normal gait, tenderness of the left metatarsal heads and tenderness below the right lateral malleolus, worse with stress on the lateral ligament, and slight pain upon eversion of the right foot. The diagnosed disorders were metatarsalgia of the left foot and right ankle strain. X- rays in March 1990 revealed minimal degenerative joint disease changes of the right foot and no interval changes of the left foot from December 1989. In April 1990 the veteran underwent left foot surgery, a DMO of the third metatarsal of the left foot, arthroplasty of the fourth digit, and a Winograd of the medial border of the left hallux. Outpatient treatment records reflect diagnoses of mallet toe of the fourth digit of the left foot, plantar flexed third metatarsal of the left foot, and onychocryptosis, medial border, left hallux. The veteran was issued a prosthesis for the left foot. At a VA compensation examination in January 1996, the veteran reported that for the previous 3 years his hips, knees, and feet had become stiff with a loss of movement, resulting in a pattern of persistent or periodic pain and periods of loss of mobility. Examination resulted in findings of bilateral heel spurs, left first metatarsal-phalangeal resection arthroplasty, and [other illegible findings]. At a personal hearing in February 1999 before the undersigned Member of the Board, the veteran testified that: during service he injured his ankle, knee, and hip joints when these joints took a great deal of shock as the result of parachute landings; from about February 1964 to June 1965, he sought treatment in service at Okinawa and in Hawaii; he was taking pain medication for the ankle, knee, and hip joints; and he had undergone about 5 surgeries for replacement of cartilage of joints. In response to questioning from the Board, the veteran indicated that it was his contention that disorders of the ankle, knee, and hip joints, and the great toe, resulted from trauma in service from parachute jumps, and it was his alternative contention that disorders of the ankle, knee, and hip joints, and the great toe were aggravated by an altered gait attributable to his service-connected foot disability (bilateral pes planus). It is unclear from the evidence of record whether the veteran currently has diagnosed disabilities of the bilateral hip, knee, or ankle, or hallux rigidus of the left great toe. While the veteran was diagnosed with right ankle strain in 1990, and in January 1996 was noted to have heel spurs, there is no current medical diagnosis of record of a disability of the bilateral hip or knee. Even assuming, arguendo, that the veteran had a currently diagnosed disability of the hips or knees, there is no competent medical evidence of record to demonstrate a nexus between the veteran's claimed bilateral hip, knee, or ankle disorders, or hallux rigidus of the left great toe, and any injury or disease in service, including parachute jumps, or his service-connected disability of bilateral pes planus. The veteran does not report a history of continuous post-service symptomatology. Treatment records reflect the veteran reporting a history of bilateral hip, knee, and ankle symptomatology (weakness, instability) beginning in January 1990. Outpatient treatment records and the January 1996 VA examination report reflect various complaints regarding the feet and ankles, but none include an etiology medical opinion relating any current disorders to the veteran's service or to a service-connected disability (including bilateral pes planus). With regard to the veteran's alternative theory of service connection for ankle, knee, and hip joints, and the great toe, on the basis of aggravation by his service-connected bilateral pes planus, there is no competent medical evidence of record to demonstrate that the veteran's disorders of the ankle, knee, or hip joints, or the great toe, were either caused or aggravated by his service-connected disability. A claim for service connection on a secondary basis still requires some competent medical evidence relating the claimed secondary condition to the service-connected disability, either by way of causation or by way of aggravation. See Libertine, 9 Vet. App. 521; Jones, 7 Vet. App. at 138. With regard to the veteran's alternative claim for service connection for ankle, knee, and hip joints, and the great toe on the basis of aggravation by his service-connected bilateral pes planus, the Board notes that the veteran first raised this theory of service connection during the appeal at the February 1999 hearing before the Board. The Court has held that when "the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and if not, whether the claimant has been prejudiced thereby." Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board finds that, in this veteran's case, though the Board has addressed the issue of entitlement to service connection on a secondary basis, a question which was not before the RO because the veteran had not yet raised the issue until later on appeal, the veteran has not been prejudiced thereby. At the February 1999 Board hearing, and with his representative present, the veteran indicated that he was also contending that his claimed disabilities were aggravated by his service-connected pes planus. He was afforded the opportunity to present evidence at the hearing on the issue of entitlement to service connection on a secondary basis. Without a medical nexus opinion to relate the veteran's current disorders to any injury or disease in service, including parachute jumps, or to his service-connected disability of bilateral pes planus, the claims as to service connection for bilateral hip, knee, and ankle conditions, and hallux rigidus of the left great toe must be viewed as not well grounded. 38 U.S.C.A. § 5107(a). While the veteran may sincerely believe that such a nexus exists, his statements and testimony as to such medical matters do not constitute evidence to render his claim well grounded under 38 U.S.C.A. § 5107(a); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board believes that the above discussion is sufficient to notify the veteran of the type of evidence required to complete his application for service connection for the claimed disabilities. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). ORDER As the March 14, 1996 rating decision, which assigned a 10 percent rating for bilateral pes planus, did not involve CUE, the appeal is denied. The veteran's claims of entitlement to service connection for bilateral hip, knee, and ankle conditions, and hallux rigidus of the left great toe, having been found to be not well grounded, the appeal as to these issues is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals