Citation Nr: 18160672
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 16-40 521A
DATE:	December 28, 2018
ORDER
The motion to revise the November 8, 1996 decision by the Board of Veterans’ Appeals (Boar) that denied service connection for bilateral deep venous thrombosis (DVT) on the basis of clear and unmistakable error (CUE) is denied.
FINDING OF FACT
The November 8, 1996 Board decision, which denied service connection for bilateral DVT, represented a reasonable application of the known facts to the law then in existence. 
CONCLUSION OF LAW
The Board did not commit CUE when it denied service connection for bilateral DVT in its November 8, 1996 decision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1401, 20.1403.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran, who is the moving party, served on active duty from December 1986 to December 1991.  
Whether the Board’s November 8, 1996 decision, which denied entitlement to service connection for bilateral DVT, should be revised or reversed due to CUE.
The moving party, through his attorney, contends that the November 8, 1996 Board decision, which denied service connection for bilateral DVT, was clearly and unmistakably erroneous in determining that the moving party’s claim was not well grounded and therefore denied.  Specifically, the attorney asserts that the Board committed error by relying on its own medical opinion in violation of the decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) in Colvin v. Derwinski, 1 Vet. App. 171 (1991).  
In the interest of clarity, the Board will discuss law and VA regulations pertaining to the motion under consideration, those in effect at the time of the November 1996 decision, and then will move on to an analysis of the motion.
As a preliminary matter, the Board finds that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the issue of CUE.  See Livesay v. Principi, 15 Vet. App. 165 (2001); Baldwin v. Principi, 15 Vet. App. 302 (2001).  Additionally, it is pointed out that the VCAA, which did away with the need for a claim to be well-grounded, was not passed until 2000, several years after the Board decision at issue.  
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during a Veteran’s active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  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.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  See 38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  
In November 1996, the threshold question to be answered concerning this issue was whether the Veteran had presented evidence of a well-grounded claim; that is, one that is plausible, meritorious on its own, or capable of substantiation.  38 U.S.C. § 5107(a) (1996); Murphy v. Derwinski, 1 Vet. App. 78 (1990).  In the absence of evidence of a well-grounded claim, there was no duty to assist the Veteran in developing the pertinent facts and the claim failed.  Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998).  Where there was no demonstration of current disability, a well-grounded claim was not considered to have been submitted.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
In order for a claim to be well-grounded, there had to be competent evidence of current disability, evidence of the incurrence or aggravation of a disease or injury during service, and a nexus between the in-service injury or disease and the current disability.  That meant that for a claim of service connection, there had to be evidence of a current disability, disease or injury during service and a link between the two.  Furthermore, the evidence needed to establish service connection for any particular disability had to be competent.  That is, an injury during service may be verified by medical or lay witness statements; however, the presence of a current disability required a medical diagnosis; and, where an opinion was used to link the current disorder to a cause or symptoms during service, a competent opinion of a medical professional was required.  Caluza v. Brown, 7 Vet. App. 498 (1995).  As such, to be deemed well-grounded, the claim had to be supported by evidence, not just allegations.  Tirpak v. Derwinski, 2 Vet. App. 609 (1992).  While it is noted that the Veteran had given sworn testimony to the effect that he believed that there was a relationship between service and his claimed disabilities, it is noted that he is a layman, and, as such, was not competent to give an opinion requiring medical knowledge such as involved in making diagnoses or explaining the etiology of a condition.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 
Evidence of record at the time of the November 8, 1996 Board decision included the Veteran’s service treatment records (STRs), which showed no abnormality at the time of his entry into active duty, but that in February 1991, the Veteran was seen for complaints of exquisite pain in the left lower extremity.  A venogram was recommended.  This revealed an obstruction of the deep veins up to the inguinal region.  A follow-up examiner went on to state that, based on review of the record, bilateral DVT was suspected.  The Veteran was placed on the medication Heparin to be followed by a three to six-month course of Coumadin treatment.  In March 1991, the assessment was that the DVT was clinically improving.  During an April 1991 Physical Evaluation Board examination, it was noted that the Veteran gave a history of having been bitten by a snake while in the woods.  While the examination report primarily concentrated on the suicide attempt made by the Veteran at that time, it was noted that he had developed bilateral DVT for which he was given antibiotic and anticoagulant therapies.  The Veteran was transferred to a transient personnel unit for administrative separation due to his psychiatric symptoms.  Regarding his DVT, it was noted that this was resolving with coumadin therapy.  This therapy was discontinued in July 1991 at which time it was noted that the Veteran continued to have some swelling of the legs, but was able to stand on his toes.  The impression was status post bilateral DVT.  In October 1991, the Physical Evaluation Board found the Veteran to be unfit for duty as a result of his psychiatric disorder.  It was also found that his bilateral DVT, resolving, was “not separately unfitting and did not contribute to the unfitting condition.”  
An examination was conducted by VA in April 1992.  On review of the Veteran’s past medical history, it was noted that the Veteran had a DVT in February 1991, at the same time he had been hospitalized for depression.  The examiner stated, “At present time, other than the symptoms related to psychiatric illness, [the Veteran] denies any significant complaints.”  On physical examination of the cardiovascular system, the examiner stated, “There is no discernible varicose veins in the lower extremities.”  (The Board notes that this was inaccurately reported in the November 8, 1996 Board decision.)  The pertinent diagnosis was “no ongoing medical illness.”  An August 1994 temporary disability retirement list evaluation focused solely on the Veteran’s psychiatric disorder, with a notation of a physical diagnosis of history of DVT.   The Veteran underwent a partial VA examination in November 1994 at which time his history of bilateral DVT was described.  He complained of occasional swelling in the lower extremities when he stood for a long period of time or lifted weights.  Examination showed no evidence of superficial varicosities or complaints of these.  Another examination was conducted by VA in March 1995.  At that time, the Veteran had no complaints regarding the history of DVT and there were no objective findings from a vascular standpoint.  As there were no clinical findings regarding his vascular examination, vascular tests were not deemed necessary.  
Based on a review of the foregoing evidence, the Board denied the Veteran’s claim for service connection on November 8, 1996.  The Board stated:
It appears to the Board that the facts associated with this claim failed to establish evidence of a current disability that was incurred m or related to military service.  At the time the veteran was placed on temporary retirement because of a disability the deep venous thromboses was diagnosed as resolving.  The post service records does not show continuity of symptomatology (38 C.F.R. § 3.303) or history of treatment after the veteran s separation from service.  In fact, VA examinations in recent years showed no vascular problems.  There is no medical evidence of a current deep venous thromboses that had its incurrence in service, or, a nexus between a current vascular disability and military service. As explained in Caluza v Brown 7 Vet. App. 498 (1995) in order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis).  With the absence of medical evidence demonstrating a current disability the claim of entitlement to service connection for deep venous thromboses is considered not well grounded.  
The Veteran now seeks revision or reversal of the Board’s November 8, 1996 decision on grounds that the Board committed CUE.  It is specifically asserted that the Board relied on its own medical expertise in violation of the holding in Colvin.  
CUE is a very specific and rare kind of error.  38 C.F.R. § 20.1403(a).  It is the kind of 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.  Id.  Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.  Id.
Any party to a final Board decision can make a motion to have the decision revised or reversed on grounds of CUE. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400(a), 20.1401(b).  In order to prevail on such a motion, the movant must establish that there was an error in the Board’s adjudication, and that the error was such that, had it not been made, the outcome of the adjudication would have been manifestly different.  38 C.F.R. § 20.1403(c).  If it is not absolutely clear that a different result would have ensued, the error complained of cannot be “clear and unmistakable.” Id.
Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made.  38 C.F.R. § 20.1403(b)(1).  A disagreement with how the Board weighed or evaluated the facts in a particular case is not CUE. Id. 38 C.F.R. § 20.1403(d)(3).  Neither can CUE be established by virtue of VA’s failure to fulfill the duty to assist.  Id. § 20.1403(d)(2).  Further, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.  38 C.F.R. § 20.1403(e).
The Board finds that it did not commit CUE when it denied service connection for a bilateral DVT in November 1996.  In short, the November 8, 1996 decision represents a reasonable application of the known facts to the law then in existence.  The examinations performed in 1992, 1994, and 1995 failed to find evidence of the current existence of DVT in either of the Veteran’s lower extremities.  In the absence of proof of a current disability there is no valid claim of service-connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Board, in relying on the medical examinations that did not demonstrate evidence of DVT, complied with the Court decision in Colvin.  
In this regard, it is noted that central to the moving party’s argument that the Board committed CUE in the November 8, 1996 Board decision, is the assertion that the April 1992 VA examination confirmed the presence of “discernible varicose veins in the lower extremities.”  Therefore, the Board made its own medical determination when it found that the Veteran’s claim was not well-grounded.  However, as was indicated above, the Board actually committed a typographical error in its November 8, 1996 decision when it stated in the Factual Background, “The veteran was afforded a VA examination in April 1992.  There were discernible varicose veins in the lower extremities.”  Instead, as was also clarified above, the April 1992 VA examination report states, “There is no discernible varicose veins in the lower extremities.”
The Veteran has presented no evidence that either the correct facts, as they were known at the time of the November 8, 1996 Board decision, were not before the Board, or that the statutory or regulatory provisions extent at the time were incorrectly applied.  The Board notes that in 2012 the Veteran reopened his claim and presented additional evidence, and that his claim was ultimately granted. However, the evidence necessary to support his claim was not of record at the time of the Board’s November 8, 1996 decision, and thus that decision was not CUE.
The determinative question in this case is not whether it would have been reasonable for an adjudicator to have granted service connection for the Veteran’s bilateral DVT in November 1996.  Rather, the question at this stage is whether, given the law extant at the time, and the evidence then of record, it is absolutely clear that a different result should have ensued.  38 C.F.R. § 20.1403(c).  Here, for all of the foregoing reasons, the Board must answer that question in the negative. The allegation of failure to follow applicable regulations is not supported by close review of the record, and, further, it is neither claimed, nor shown, that the alleged failure to follow an applicable regulation changed the outcome.
 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Joseph P. Gervasio 

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