The appellant, veteran Donald P. Son-del, appeals through counsel a February 12, 1998, Board of Veterans’ Appeals (BVA or Board) decision that a February 17, 1947, Department of Veterans Affairs (VA) regional office (RO) decision denying VA service connection for a right-leg disability did not contain clear and unmistakable error (CUE). Record (R.) at 3. The appellant has filed a brief and a reply brief, and the Secretary has filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will reverse the BVA decision and remand the matter.
I. Background
The veteran had active service in the U.S. Army from July to October 1946. R. at 44. The service medical record (SMR) of his induction examination indicated that he had reported having had a hemangioma removed from his right thigh in February 1946 at the Mayo Clinic, and that the
An October 1946 SMR contained a recommendation that the veteran be given a Certificate of Disability for Discharge (CDD) due to the following: “Other diseases of the neuromuscular system right leg manifested - by pain in right thigh E.P.T.S. [existed prior to service]. Postoperative Mayo Clinic.” R. at 27; see also R. at 20 (October 1946 report of Army medical board recommending CDD on same basis). In October 1946, the veteran was given the recommended CDD. R. at 44.
In November 1946, the veteran filed with a VARO an application for VA service connection for severe pain in his right thigh; he noted that although he had “had an operation on this leg before entry into service, the leg was considered to be in very good condition at the time of enlistment.” R. at 47. On February 17, 1947, the RO determined that the veteran’s claimed condition was “[n]ot incurred in or aggravated by service” and denied service connection for a disease of the neuromus-cular system of the right leg manifested by pain in the right thigh. R. at 51. The RO indicated that the veteran’s disability had “existed prior to induction” but “was not aggravated beyond the natural progress normally to be expected”. Finally, the RO noted: “CDD description of disability is left leg and thigh. This is in error. Records disclose alleged disability to be in right leg and thigh.” Ibid. The veteran did not appeal to the Board.
In October 1992, the Board determined, inter alia, that the February 1947 RO decision had not contained CUE based on an asserted violation of the veteran’s due pro
In March 1994, the veteran filed with the RO, through counsel, a new claim of CUE in the February 1947 RO decision; he alleged that the RO had failed properly to consider the presumрtions of soundness and aggravation that had applied in February 1947. R. at 226. The RO denied the claim in May 1994. R. at 288. In the February 1998, BVA decision here on appeal, the Board denied the veteran’s CUE claim. R. at 3.
II. Analysis
A. CUE Claim
An RO decision that has become final, as has the 1947 RO decision at issue here, generally may not be reversed or amended in the absence of CUE. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (1998); see also 38 U.S.C. §§ 5108, 7105(c); cf. 38 U.S.C. § 5110(i) (when previously disallowed claim is reopened' and allowed on basis of new and material evidence in form of service department records, effective date is date such disallowed claim was filed).
Section 3.105(a) of titlе 38, Code of Federal Regulations, provides:
Where evidence establishes [CUE], the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative 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). The CUE claim presented here is a collateral attack on a final RO decision. See Crippen v. Brown,
In Russell v. Principi, the Court defined CUE as follows:
Either the correct facts, as they were known at the time, were nоt before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.... [CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome ... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.
Russell,
Russell also established that, as a threshold matter, a CUE claim cannot be raised for the first time before this Court
“In assessing whether the VA has committed CUE in the application of law, this Court will analyze the state of the law as it existed when the determination was made.” Allin v. Brown,
It is thus unclear to the Court why the Board, even after stating that VR 1(a), as revised by an act of Congress, was “in effect at” the time of the February 1947 RO decision, nonetheless applied 38 C.F.R. § 2.1063(b) (Supp.1946), without consideration to the specific language of VR 1(a). R. at 6-7. This error, however, does not affect our analysis of the application of the presumption of soundness because the text of § 2.1063(b) and VR 1(a) were virtually identical. The regulation had provided:
[Ejvery person employed in active service shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and еnrollment or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Relative to notation at enlistment, only those defects, infirmities[,] and disorders noted at the time of examination are to be considered as noted. History of the preservice existence of defects, infirmities[,] or disorders recorded at the time of examination does not constitute a no*218 tation of such conditions but will be considered together with all other matеrial evidence in determinations as to the inception of such defects, infirmities[,] or disorders.
38 C.F.R. § 2.1063(b) (Supp.1946); see also Akins,
Because the presumption of soundness applied to this veteran, the Board was required to consider whether the RO in 1947 had been presented with “clear and unmistakable evidence [that] demonstrate[d] that the ... disease [listed on the veteran’s CDD had] existed before acceptance and enrollment and [if so that it] was not aggravated by [his] ... service.” VR 1(a), Part I, para. 1(b); 38 C.F.R. § 2.1063(b), (d) (Supp.1946). In this case, the Board determined that the presumption of soundness was rebutted by the following evidence: (1) The SMR of the veteran’s induction examination, which contained a notation of a scar on his right thigh and a “confirmed” notation that he had had a hemangioma removed from his right thigh prior to service (R. at 14-15); and (2) the notations on the veteran’s CDD and October 1946 Army medical board report that his condition had existed prior to service (R. at 20, 27). R. at 7. Based on the Board’s factual analysis of the evidence before the RO in 1947, the Court cannot conclude that the Board decision wаs “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”, 38 U.S.C. § 7261(a)(3)(A), in determining that the RO had not erred in deciding (R. at 51) in 1947 that the presumption of soundness had been rebutted. Nor can the Court conclude that the statement of reasons or bases contained in the BVA decision here on appeal was inadequate in this respect. See 38 U.S.C. § 7104(d)(1); Eddy, Damrel, and Russell, all supra.
Having decided that the RO did not err in its determination that the conditions for which the veteran was discharged had preexisted his service, the Board was next required to consider the applicability of the prеsumption of aggravation. As a threshold matter, the presumption of aggravation is generally triggered by evidence that a preexisting disability has undergone an increase in severity in service. See Maxson v. West,
As to this presumption, VR 1(a), Part I, para. 1(d), differed significantly from the regulation applied by the Board in the BVA decision here on appeal; that regulation had provided:
[I]njury or disease noted prior to service or shown by clear and unmistakable evidence, including medical facts and principles, to have had inception prior to enlistment will be conceded to have been aggravated where such disability underwent an increase in severity during service unless such increase in severity is shown by clear and unmistakable evidence, including medical facts and principles, to have been due to the natural progress of the disease.
38 C.F.R. § 2.1063(i) (Suрp.1946) (emphasis added). In contrast, VR 1(a), Part I, para. 1(d), had provided:
That for the purposes of paragraph 1(a) hereof [basic entitlement] a preexisting injury or disease will be considered to have been aggravated by active military service as provided for therein where there is an increase in disability during active service unless there is a specific ñnding that the increase in disability is due to the natural progress of the disease.
VR 1(a), Part I, para. 1(d) (emphasis added); see also Akins,
Rather than apply the presumption of aggravation set forth in VR 1(a), Part I, para. 1(d), the BVA decision on appeal instead applied 38 C.F.R. § 2.1063 (Supp. 1946), which, as noted above, did not contain the “specific finding” requirement. R. at 8-9.
When the Court in Akins addressed the presumption of aggravation under VR 1(a), the Court found the “specific finding” language emphasized above to be “disposi-tive”. Akins,
The applicability of Akins to the instant matter is obvious; the facts of this ease are indistinguishable from those in Akins. Here, as in Akins, in reviewing the RO’s decision, the Board neither discussed medical evidence that the “[o]ther diseases” (R. at 20, 27) for which the veteran was discharged “naturally followed from the preexisting” postoperative right-thigh scar, nor noted any medical evidence indicating, let alone making a “specific finding”, that the symptomatology for which the veteran was discharged represented a natural progression of a preexisting condi
The Court notes that the Akins opinion did not address the disparity between the C.F.R. provision and the VR 1(a) provision that was codified into law in 1943 — indeed, as quoted above, the Court in Akins even referred to the “specific finding” requirement as being part of “regulation”, Akins,
Having determined that under Akins the Board’s decision in this case cannot be sustained, we now turn to the question of remedy. In Akins, the Court, citing Bentley v. Derwinski,
We hold that the remedy of reversal is, in fact, still viable today. Since Russell, the Court at least twice has reversed a BVA decision denying a CUE claim when there was no basis whatsoever in the record for a contrary result. Ternus v. Brown,
In this case, as discussed above, the Court can find no evidence of record that would support the requisite specific finding that the veteran’s condition represented a natural progression of a preexisting disease, as mandated by VR 1(a), Part I, para. 1(d), and Akins. Accordingly, we can find no basis whatsoever to conclude that the RO followed the extant regulation. As to whether, had the RO applied the regulation, the outcome of this case manifestly would have been changed, because the RO determined that the conditions fist-ed on the veteran’s CDD were “[n]ot incurred in or aggravated by service” (R. at 51), it is apparent that, had the RO applied the extant regulation as it was required to do, it would have had to “сonsider[ ]” that the record contained no specific finding that the conditions fisted on the veteran’s CDD were due to a natural progression of his preexisting condition and thus would have been forced to conclude that those conditions constituted an in-service aggravation of the veteran’s preexisting disability. VR 1(a), Part I, para. 1(d); see also Akins, supra. Hence, because the Board
Finally, the Court notes that the Board, in an effort to support the conclusion that any error committed by the RO in 1947 would not have resulted in a manifestly different outcome, see Bustos and Russell, both supra, pointed to a 1954 medical record indicating that the veteran had been treated for “tenderness at the upper end of’ his right-thigh scar, and that “the prognosis was for an ultimate recovery.” R. at 10 (discussing R. at 54). The Board, as it has acknowledged (R. at 10), was not permitted to consider that evidence, which postdated the 1947 RO decision. See Russell,
B. Fee Agreement
On April 22,1998, the appellant, through counsel, filed a Notice of Appeal as to the February 1998 BVA decision. The fee agreement, filed that same day, between the appellant and his counsel, Ronald L. Smith, of the Disabled American Veterans (DAV), stated:
Appellant agrees to, and hereby does, assign his rights under the Equal Access to Justice Act (EAJA), 28 U.S.C.A. [§ ] 2412[ (d),] to Ronald L. Smith. Ronald L. Smith shall have the right to claim attorney fees or expenses, based upon the appeal which is the subject of this Agreement, to the full extent that such rights are conferred upon Appellant by the [EAJA].
Fee Agreement at 1.
The fee agreement provisions here are essentially the same as those in Carpenter (Angeline) v. West,
III. Conclusion
Upon consideration of the foregoing analysis, the record on appeal, and the submissions of the parties, the Court reverses the February 1998 BVA decision and remands the mаtter for expeditious issuance of a readjudicated decision amending the February 1947 RO decision so as to award service connection and provide for an appropriate disability rating, supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5109A, 7104(a), (d)(1), 7261; VR 1(a), Part I, para. 1(d); 38 C.F.R. § 3.105(a) (1998); Akins, supra —all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims
REVERSED AND REMANDED.