Citation Nr: 0000022 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 98-09 955A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date for service connection for a lumbar spine disorder, earlier than January 17, 1992. 2. Whether there was clear and unmistakable error (CUE) in a prior rating decision, of December 1, 1961, denying service connection for a lumbar spine disorder. 3. Whether there was clear and unmistakable error (CUE) in a prior rating decision, of December 26, 1963, failing to grant service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from September 1959 to September 1961. This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 1998, from the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In its March 1998 rating decision, the RO characterized the issue before it as "whether the decision to grant service connection for lumbar laminectomy from January 17, 1992, instead of an earlier effective date of August 16, 1963, was clearly and unmistakably erroneous." The Board finds that the identification of the issues before VA more appropriately can be characterized as identified on the first page of this decision; the development requested by the Board in the Remand section below reflects this. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. A December 1963 rating action denied service connection for a low back disorder. 3. The veteran was provided written notice of this determination and of his appellate rights; he did not submit an appeal within one year thereafter. 4. The report of a VA examination conducted in November 1963 shows no subjective complaints reported pertaining to the lumbar spine. The veteran's service connected cervical spine disability was reviewed in detail. It was noted that the remainder of the back showed no abnormality. 5. The rating decision of December 1963 was consistent with, and supported by, the evidence of record. CONCLUSION OF LAW The December 1963 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is contended by the veteran, in essence, that a grant of an earlier effective date for service connection for a low back disorder is warranted. The veteran contends that rating decisions failing to grant, and denying, service connection for a low back disorder issued in December 1961 and December 1963, respectively, incorrectly applied the applicable law to the known facts. With regard to the December 1961 rating decision, the Board notes that the RO has not fully developed this subject for appeal. The rating decision of March 1998 and the Statement of the Case of May 1998 contain references exclusively to the December 1963 rating decision, although it is clear from the veteran's contentions that he believes that both of these decisions contained CUE. The veteran has specifically contended that because the VA examination of November 1961 showed objective findings of a low back disability, the December 1963 rating decision finding that a low back disability was not found on last examination was factually incorrect. The claim for CUE regarding the December 1961 rating decision is the subject of the remand portion of this decision. As the claim for an earlier effective date for the low back disability is inextricably intertwined with this issue it must also be remanded. However, the question of whether the December 1963 rating decision was clearly and unmistakably erroneous can be, and is, adjudicated at this time. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior rating decision will be reversed or amended. 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 C.F.R. 3.105(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad- brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id., at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the 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 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Under the applicable criteria at the time of the previous rating decisions and substantially the same as under present law, 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. A review of the pertinent evidence of record indicates that the veteran filed a claim for service connection in September 1961. He cited an inservice injury to his neck and left arm during a parachute jump. Service medical records show continuous treatment for a cervical spine injury. There is a single entry referring to the lumbar spine, in August 1961. Flexion and extension films, ordered in relation to treatment for his neck disability, showed a trace of joint damage at L4-L5 facet interval. No lumbar spine disability was noted on separation physical examination, and no inservice complaints relating to the lumbar spine are shown. On VA examination in November 1961, he gave complaints regarding an injury to his neck, left arm, and back due to a parachute jump accident which occurred in May 1960. Objective examination showed loss of motion of the lumbar spine to 40 percent of normal, with tenderness over the left lateral aspect of the lumbar spine at L2, L3 and L4. X-ray examination of the lumbar spine was normal; however, muscle spasms were noted. A rating decision dated in December 1961 granted service connection for a cervical spine disability. In the body of the decision the examination findings regarding the veteran's lumbar spine were noted; however, the issue was not adjudicated at that time. The veteran disagreed with his evaluation regarding the cervical spine disability and eventually this was the subject of a Board decision. The Board decision of October 1963 noted in an addendum that no decision had been rendered regarding the veteran's claim for service connection for a low back disability, as this issue had not yet been adjudicated by the RO. The RO scheduled the veteran for a new examination noting that he was claiming service connection for a low back disorder. The examination was conducted in November 1963. The examination report consists primarily of an evaluation of the veteran's cervical spine disability, and has the appearance of an examination regarding a claim for an increased evaluation for this disorder. No subjective complaints regarding the low back were noted, and the report states that the remainder of the back, aside from the cervical spine, was normal. A rating decision of December 1963 denied service connection for a low back disorder, noting that no low back disability was found on last examination. The veteran was notified in January 1964. He did not enter a timely appeal of this decision. As noted above, the veteran has specifically contended that the December 1963 rating decision was factually incorrect in its finding that a low back disability was not found on last examination. This is not so. The December 1963 rating decision referred to the November 1963 VA examination, not the November 1961 VA examination. As noted above, the November 1963 examination report showed no complaints or findings of disability regarding the lumbar spine. It cannot be said that the December 1963 rating decision was clearly and unmistakably erroneous. It was based on the report of a VA examination that was performed just one month previously. Although a VA examination report two years earlier had shown back pathology, it cannot be said that the rating board erred in relying on the more recent examination report. A mere disagreement with how the Rating Board weighed the significance of the two examination reports does not rise to the level of CUE. In view of the foregoing, therefore, the Board concludes that the December 26, 1963, rating action denying the veteran's claim for service connection for a low back condition was not clearly and unmistakably erroneous. Rather, a review of the evidence, and the applicable statutory and regulatory provisions, clearly demonstrates that there was no failure by that Rating Board to apply the correct statutory and regulatory provisions to the correct and relevant facts. The veteran's claim that the December 26, 1963, rating decision, whereby service connection for a low back disability was denied, was clearly and unmistakably erroneous, accordingly fails. 38 C.F.R. § 3.105(a) (1999). ORDER A December 26, 1963, rating decision, which denied service connection for a low back disability, was not clearly and unmistakably erroneous. REMAND As noted above, the veteran has also contended that a December 1, 1961, rating decision, which failed to grant service connection for a lumbar spine disorder, was clearly and unmistakably erroneous. The Board notes that in the development of this claim the RO has focused on the December 1963 rating decision and has not examined the veteran's claim regarding the December 1961 rating decision, which was promulgated shortly after the November 1961 VA rating examination that noted lumbar spine pathology. The Board concludes that this matter must undergo further review at the RO level in order to ensure full compliance with due process requirements. As the claim for entitlement to an earlier effective date is inextricably intertwined with the claim of CUE regarding the December 1961 rating decision, this claim must also be remanded. Therefore, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should re-examine the veteran's claim regarding CUE in relation to the December 1, 1961, rating decision. The RO should provide adequate reasons and bases to explain its decision to the veteran. 2. Upon completion of item one, the RO should re-adjudicate the veteran's claim for entitlement to an earlier effective date for service connection for a low back disorder. If the decision of the RO remains adverse, the veteran and his representative should be provided a supplemental statement of the case and adequate time to respond. The claim should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. M. S. SIEGEL Acting Member, Board of Veterans' Appeals