191003-35961
191003-35961
| Board of Vet. App. | Aug 31, 2021Background:
- Veteran served on active duty Feb 1989–Sep 1991 and reported a February 1991 in‑service back injury after being pushed into a tractor‑trailer while pulling a mail cart.
- Service treatment records show complaints and diagnoses of lumbar strain/contusion in Dec 1990–Feb 1991; no separation exam was of record.
- February 1992 VA exam demonstrated mild dextroscoliosis (scoliosis) and otherwise no lumbar abnormalities; private chiropractic notes exist but contain limited linkage to service.
- June 1992 rating decision denied service connection for a back condition, characterizing the scoliosis as a constitutional/congenital abnormality and finding no aggravation by service; the decision was endorsed by three rating specialists (one MD).
- Veteran pursued a CUE challenge; appeals included RAMP opt‑in, Higher‑Level Review, Board denial (June 2020), a Joint Motion for Remand to the Court (Mar 2021), and readjudication, culminating in the Board again denying revision for CUE (Aug 31, 2021).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the June 1992 rating decision contained CUE | Veteran: adjudicators misapplied law/regulations then in effect; outcome would have been different | VA: adjudicators reasonably weighed contemporaneous evidence; no outcome‑determinative legal or factual error | No CUE; revision denied |
| Application of the presumption of soundness (preexistence/aggravation) | Veteran: VA failed to apply presumption correctly and did not show clear and unmistakable evidence of preexisting condition | VA: contemporaneous standard required only clear and unmistakable evidence of preexistence; adjudicators could reasonably find preexistence or that evidence did not show aggravation | No CUE; reasonable minds could differ, so presumption issue does not compel reversal |
| Alleged misstatement of fact in 1992 rating decision | Veteran: June 1992 decision misstates that condition "resolved with no evidence of orthopedic condition" despite February 1992 scoliosis diagnosis | VA: statement was not due to omission of material facts and adjudicators cited the February 1992 exam and range‑of‑motion results | Misstatement acknowledged but not outcome‑determinative; does not establish CUE |
| Lack of nexus/current disability linking post‑separation back condition to service | Veteran: private records and in‑service treatment support service connection | VA: no post‑separation nexus opinion existed in the 1992 record; adjudicators reasonably concluded no current service‑connected disability shown | Even assuming other errors, absence of a contemporaneous nexus opinion means outcome would not have manifestly changed |
Key Cases Cited
- Russell v. Principi, 3 Vet. App. 310 (1992) (establishes three‑prong test for CUE)
- Fugo v. Derwinski, 6 Vet. App. 40 (1993) (CUE is a rare error that must compel a manifestly different result)
- Fournier v. Shinseki, 23 Vet. App. 480 (2010) (CUE review limited to record and law at time of prior adjudication)
- Wagner v. Principi, 370 F.3d 1089 (2004) (presumption of soundness allocation of burden rules)
- George v. McDonough, 991 F.3d 1227 (2021) (post‑Wagner standards cannot be the basis for CUE in pre‑Wagner decisions)
- DAV v. Gober, 234 F.3d 682 (2000) (new statutory interpretations cannot retroactively create CUE)
- George v. Wilkie, 30 Vet. App. 364 (2019) (must show manifestly different outcome to prove CUE)
- McClain v. Nicholson, 21 Vet. App. 319 (2007) (discusses when a current disability is deemed to exist for claims)
- Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (Board must address recent pre‑claim diagnoses when assessing current disability)