Citation Nr: 18900010
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180521-30
DATE:	August 15, 2018
ORDER
As the April 2000 rating decision denying entitlement to service connection for pes planus was clearly and unmistakably erroneous, it is reversed, and service connection for pes planus is granted as if this decision were made at the time of the erroneous decisions.
FINDING OF FACT
The evidence of record at the time of the April 2000 rating decision undebatably showed that the Veteran’s pre-existing pes planus was aggravated by service.  
CONCLUSION OF LAW
The RO’s April 2000 rating decision denying entitlement to service connection for pes planus contained clear and unmistakable error (CUE); the criteria for service connection for pes planus was met at the time the decision was rendered.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from January 1994 to January 2000. 
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review.  The Veteran chose to participate in BEAAM, the Board of Veterans' Appeals (Board) Early Applicability of Appeals Modernization research program.  This decision has been written consistent with the new AMA framework.
1. Whether there was CUE in the prior March 2000 rating decision denying entitlement to service connection for pes planus.  
Previous determinations that are final and binding - such as because the decision was not appealed - will be accepted as correct in the absence of CUE.  Where evidence establishes CUE, however, the prior decision will be reversed or amended.  See 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a).  "[CUE] is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts."  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied.  Russell v. Principi, 3 Vet. App. 310, 313 (1992).  CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error.  Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 
The Court of Appeals for Veterans Claims (Court) has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) either 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 the law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell, 3 Vet. App. at 313-14). 
The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated.  Eddy v. Brown, 9 Vet. App. 52 (1996).  When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error.  Fugo, supra.  Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE.  Id. at 44.  A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE.  Luallen v. Brown, 8 Vet. App.92, 95 (1995).  To prove the existence of CUE as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision.  Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000).
The Veteran has alleged CUE in the April 2000 rating decision that denied service connection for pes planus.  Specifically, that the RO failed to properly apply C.F.R. § 3.306(b) as the Veteran’s service treatment records revealed his entrance examination listed pes planus as mild and asymptomatic and a March 2000 VA examination found the Veteran’s pes planus was mild and symptomatic.  The Veteran contends this clearly shows pes planus was aggravated beyond its normal progression by service.  Moreover, the Veteran contends he noted foot pain upon separation from service.  See February 2018 and May 2018 statements.  
The evidence of record at the time of the April 2000 rating decision included service treatment records and a March 2000 VA examination.  In pertinent part, the service treatment records revealed his June 1993 entrance examination noted mild pes planus, asymptomatic, and he complained of foot trouble on his October 1999 report of medical history.  Additionally, during his March 2000 VA examination he reported developing bilaterally foot pain in 1998 with prolonged standing.  The examiner diagnosed him with congenital hereditary pes planus bilaterally, mildly symptomatic. 
The April 2000 rating decision states the entrance examination notes pes planus, described as mild and service medical records were negative regarding flat feet or foot complaints.  Also, on VA examination, the Veteran states he developed bilateral foot pain with prolonged standing in 1998 and examination found congenital, hereditary pes planus bilaterally.  The RO concluded that the pes planus existed prior to service with no evidence showing aggravation of the condition due to or the result of service.  At the time of the April 2000 denial, a pre-existing injury or disease would be considered to have been aggravated by active service where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease.  38 U.S.C. § 1153.  Additionally, 38 C.F.R. § 3.306(b) notes aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 
The Board concludes that the April 2000 rating decision was clearly wrong.  The Veteran had a pre-existing disability noted to be mild and asymptomatic upon entry.  During service, he complained of foot trouble and less than two months after separation from active duty, his pes planus was found to be symptomatic by a VA examiner.  The basis of the RO’s denial was a lack of evidence of aggravation of the pre-existing disability; however, the RO incorrectly noted that service medical records were negative regarding foot complaints, did not take into consideration the fact that the Veteran’s pes planus was asymptomatic on entrance and symptomatic less than two months after separation, and incorrectly interpreted the law as there was no specific finding that the increase in disability was due to the natural progress of the disease.
Based on the foregoing, the Board finds that it was undebatable that there was evidence that the Veteran's pes planus was aggravated during service and no specific finding that the increase in disability was due to the natural progress of the disease.  To find otherwise would be reversible error.  Consequently, the April 2000 rating decision’s denial of service connection for pes planus contained CUE.  Therefore, the prior denial is reversed.  Service connection for pes planus is granted as if it was awarded on the date of the April 2000 decision.  
 
Evan M. Deichert
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Costello, Associate Counsel 

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