Veteranclaims’s Blog

April 11, 2012

Single Judge Application, CUE Assertions filed by Counsel, No Liberal Reading, Massie v. Shinseki, 25 Vet.App. 123, 131 (2011)

Excerpt from decision below:
“Moreover, assertions of CUE raised by counsel are not entitled to a liberal reading, see Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant), presumably in part because counsel are deemed to know the law and state their case, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); MODEL RULES OF PROF’L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-1523
CHARLES E. CHASTAIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Charles E. Chastain appeals through counsel
two
January 22, 2010, decisions of the Board of Veterans’ Appeals (Board) that (
1) denied a request for
revision of a 1970 regional office (RO) decision based on clear and
unmistakable error (CUE), (2)
denied a request for revision of a 1996 Board decision based on CUE, and (
3) determined Mr.
Chastain was not entitled to an effective date earlier than August 27,
2001, for service connection
of his low-back disability. Mr. Chastain argues that the 2010 Board erred
by determining that (1)
there was no CUE in the 1970 rating decision, (2) there was no CUE in a
1992 RO decision that
denied reopening of the original claim, or in the 1996 Board decision
affirming the 1992 RO
decision, and (3) the 1996 Board decision was final. The Secretary
disputes these contentions.
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
reasons stated below, the decision of the Board will be affirmed.
I. CUE in the 1970 Rating Decision
With regard to Mr. Chastain’s first argument, the 2010 Board determined that his complete service medical records were not before the RO, but further determined that absent this error there nevertheless would not have been a manifestly changed outcome. See MacKlem v. Shinseki, 24

Vet.App. 63 (2010) (to constitute CUE, the error must be “‘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'”) quoting Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc
))); Fugo v. Brown, 6
Vet.App. 40, 43-44 (1993) (To constitute CUE, the error must “compel[] the
conclusion, to which
reasonable minds could not differ, that the result would have been
different but for the error” and
“persuasive reasons must be given as to why the result would have been manifestly different”).
In the decision on appeal, the 2010 Board noted that the record at the time of the RO decision
contained an April 1970 x-ray report that found no abnormality other than spina bifida. In contrast, the Board found that a February 1970 medical record that was not before the RO reflected a possible
diagnosis ofspondylolysis, and Mr. Chastain’s
February 1970 serviceseparationexamination report,
which also was not before the RO, noted that Mr. Chastain had
spondylolysis on the left side but
contained no explanation for that notation. The Board noted that the
evidence was in dispute such
that reasonable minds could differ over the result, and therefore the
error did not constitute CUE
because a manifestly changed outcome was not undebatable. Based on the
record on appeal, the
Board’s determination is not arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, and the Board’s statement is understandable and
facilitative of judicial review.
See MacKlem, 24 Vet.App. at 69 (“On appeal of a Board determination that there was no CUE in
a prior final RO decision, this Court’s review is limited to determining whether the Board decision
was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ including
whether the decision is supported by an adequate statement of reasons or bases.”); Allday v. Brown,
7 Vet.App. 517, 527 (1995)(Board’s statement “must be adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate
review in this Court”); see also
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303-04 (2008) (“It is the
factually accurate, fully
articulated, sound reasoning for the conclusion . . . that contributes
probative value to a medical opinion.”).
As an assertion of error, Mr. Chastain contends that the 2010 Board erred in finding no CUE
because to find CUE it required all relevant evidence to militate in
support of a manifestly changed
outcome. Assuming arguendo that such an understanding might be erroneous under the law, a fair
reading of the entire Board decision reflects that it properly stated and understood that CUE could
2

only be established if reasonable persons could not disagree that the
outcome would have been
manifestly different but for the error. As noted above, the 2010 Board found that the evidence was
in dispute and that reasonable persons could differ as to the outcome;
this is a correct understanding
of the law. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; see also Damrel v. Brown, 6
Vet.App. 242, 246 (1994) (allegation of improperly weighing the evidence can never form the basis
of CUE).
As a second assertion of error, Mr. Chastain contends that the 2010 Board placed an unfair
burden on him to demonstrate CUE when it determined that it was not clear what clinical evidence
supported the notation of spondylolysis on his separation examination. Mr.
Chastain reasons that
because “the diagnosis was ignored by the rating official, it makes little difference that the diagnosis
was not further explained or documented.” Appellant’s Brief (Br.) at 14.
However, the burden of
demonstrating CUE is a high one and this is because it is a collateral attack on an otherwise final
decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed . Cir. 2000); Fugo, 6
Vet.App. at 44 (“Persuasive reasons must be given as to why the result would have been manifestly
different . . . .”). Moreover, whether or not a decision contains CUE is predicated on the facts known
at the time of the decision in which CUE is asserted, Bouton v. Peake, 23 Vet.App. 70, 71 (2008),
and when those facts lack clarity or are otherwise not undebatable, then they cannot establish CUE,
MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; Damrel, 6 Vet.App. at 246; see also Cook
v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (en banc) (stating that the failure in duty to
assist cannot form basis for CUE).
Mr. Chastain also argues that the 2010 Board erred by improperly rejecting a 2003 affidavit
of Dr. Namm because it was not in the record that existed at the time of the 1970 RO decision.
However, it is well settled law that CUE determinations are based on the record before the RO or
on the correct facts extant at the time of the RO decision, and evidence
developed after the decision
under attack may not be used to demonstrate CUE in that decision. MacKlem, 24 Vet.App. at 68,
Bouton, 23 Vet.App. at 71; see also Cook, 318 F.3d at 1343.
To the extent Mr. Chastain’s appeal encompasses an argument that the 2010 Board erred by
not considering that the 1970 RO erred by not addressing aggravation, the record reflects that any
such error by the 2010 Board nevertheless is not prejudicial. Newhouse v. Nicholson, 497 F.3d1298,
3

1301 (Fed. Cir. 2007) (holding that the Court reviews record to assess prejudice). Specifically, the
2010 Board’s finding that reasonable persons could differ over whether Mr. Chastain had
spondylolysis necessarily means that Mr. Chastain’s asserted aggravation – spondylolysis – is itself
reasonably debatable and insufficient to establish the manifestly changed outcome required to find
CUE. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; Damrel, 6 Vet. App. at 246; see
also Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand unnecessary when it “would result
in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no
benefit flowing to veteran”).
II. CUE in the 1992 RO decision
Mr. Chastain’s assertions of error by the 2010 Board with regard to his assertions of CUE in
the 1992 RO decision are inapposite. The 2010 Board found that the 1992 RO was subsumed in
the 1996 Board decision that affirmed the RO decision. Because the 1992 rating decision was
subsumed by the 1996 Board decision, allegations of error in the 1992
rating decision cannot be
collaterally attacked by motions for revision based on CUE, and any
allegation of 2010 Board error
with regard to CUE in the 1992 RO decision will not be further addressed. See Manning v. Principi, 16 Vet.App. 534, 450 (2002) (noting that subsumed RO decisions cannot be collaterally attacked by
motion for revision based on CUE).

III. CUE in the 1996 Board Decision
Mr. Chastain’s argument that the 2010 Board erred by not finding CUE in the 1996 Board
decision is premised on his contention that the 1996 Board misunderstood the nature of his claim
and therefore failed to apply the correct analysis. Specifically, Mr.
Chastain argues that (1) his
counsel told his Board hearing officer that “the VA was misinterpreting the claim as one for service
[-]connected spina[ bifida],” instead of one for aggravation of spina
bifida as reflected byhis having
spondylolysis, and (2) this, along with other allegations made below,1 constituted an assertion of
Mr. Chastain also points to (1) a 1995 letter that he sent to the RO, (2) an August 3, 2001, affidavit in
which he notes that in the 1995 letter he told the RO that he had filed for a “‘service-aggravated disability’, not a
‘service-connected disability,'” and (3) two memoranda to the Board in support of his appeal now on review.
However, the 1995 letter was before the 1996 Board decision, the August 3, 2011, affidavit does not assert any CUE
arguments, and, as discussed infra at 6, the 2010 Board adequately
addressed the CUE arguments made in the
memoranda.
1
4

CUE in the 1996 Board decision that the 2010 Board erroneously did not address. The Secretary
asserts that the Court does not have jurisdiction over this allegation of CUE because it was not raised
below.
Although CUE does not require “pleading with exactitude,” Jordan v.
Principi, 17 Vet.App. 261, 270-71 (2003) (finding that although “the liberal construction of a VA claimant’s pleading must
be tempered somewhat in CUE cases” that “does not require pleading with exactitude” (emphasis
in the original)), it nevertheless must be plead with “some degree of
specificity,” Andre v. Principi,
301 F.3d 1354, 1361 (Fed. Cir. 2002). Moreover, assertions of CUE raised by counsel are not entitled to a liberal reading, see Robinson v. Shinseki, 557 F.3d 1355 ( Fed. Cir. 2009) (distinguishing
between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant),
presumably in part because counsel are deemed to know the law and state their case, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); MODEL RULES OF PROF’L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model
Rules of Professional Conduct as disciplinary standard for practice).

Contrary to Mr. Chastain’s assertion, the record reflects confusion
regarding what errors his
counsel asserted below. The only clearly asserted errors at the hearing were that the 1970 RO failed
to adjudicate a theoryof entitlement to benefits based on aggravation of
Mr. Chastian’s spina bifida,2
and that this error was compounded in subsequent decisions, including a
1996 decision. Read as a
whole, and in context of the decision rendered in Mr. Chastain’s case, it
can be determined that
counsel was referring to an error in the 1996 Board decision that denied
reopening his claim, but he
provided no “degree of specificity” as to what that error was, and it is
unclear what that error might
be.
The record of proceedings reflects that the 1996 Board denied reopening
his claim because
Mr. Chastain had not presented new and material evidence. Assuming
arguendo that a failure to
reopen can constitute the manifestlychanged outcome required to establish
CUE, compare Chippen
As indicated in the text, supra at 4, Mr. Chastain’s briefing to the Court
does not specifically assert 2010
Board error in not addressing a failure of the 1970 RO to address
aggravation, but, also as noted, even assuming Mr.
Chastain’s briefing can be read to make such an argument, it fails.
2
5

v. Brown, 9 Vet.App. 412, 422 (1996) (equating manifestly changed outcome
with a change in the
merits outcome and finding that a manifestlychanged outcome requires a
finding that the underlying
claim for benefits would be granted), with Walker v. Peake, 2008 WL
4221491, at *5 (Vet. App.
Sept. 4, 2008) (per curiam order) (Kasold, J., dissenting) (suggesting
that the reopening and
processing of a claim is a manifestly changed outcome), Mr. Chastain does
not point to anything in
the record that reflects an assertion that the 1996 Board erred in its
determination that new and
material evidence had not been presented. Indeed, the record reflects
counsel’s view that the
evidence of aggravation was present when Mr. Chastain filed his claim in
1970, such that it would
not be new and material, as the 1996 Board found.3
Incontrast totheconfusingdiscussionreflectedinthehearingrecord,Mr.
Chastainotherwise
presented two assertions of CUE in the 1996 Board decision that were
addressed bythe 2010 Board.
Mr. Chastain makes no assertion that the 2010 Board erred in its decision
as to these two assertions
of CUE. Succinctly stated, Mr. Chastain fails to demonstrate that the 2010
Board failed to address
any assertion of CUE in the 1996 Board decision raised by him, the hearing
record, or the record of
proceedings. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (
appellant bears burden of
demonstrating error on appeal); see also Andre, supra.
IV. Finality of the 1996 Board Decision
Mr. Chastain’s argument that the 1996 Board decision is not final is
premised on his
contention that the RO failed to issue him a Supplemental Statement of the
Case (SSOC) following
a 1995 Board remand of the 1992 RO decision. However, the record reflects
that an October 13,
1995, SSOC was mailed to Mr. Chastain’s address of record on October 16,
1995, and a complete
copyof his claims file was mailed to his address on January29, 1996. The
presumption of regularity
applies to the Secretary’s mailing of the SSOC and therefore Mr. Chastain
must show that the
presumption is rebutted by”clear evidence.” See Clarke v. Nicholson, 21
Vet.App. 130, 133 (2007)
(applying the presumption of regularity to the mailing of an RO decision);
see also Ashley v.
It is clear from the briefing filed on behalf of Mr. Chastain and the
filings below made on his behalf that
counsel is confused and fails to understand the difference between
reopening a claim based on new and material
evidence and revising a decision based on CUE.
3
6

Derwinski, 2 Vet.App. 307, 309 (1992) (presumption of regularity may be
overcome only by the
submission of “clear evidence to the contrary”).
Although Mr. Chastain provided an affidavit to the Board alleging that he
never received an
SSOC from the RO, such an assertion standing alone does not rebut the
presumption of regularity.
Jones v. West, 12 Vet.App. 98, 102 (1998)(“[A]ssertionofnonreceipt,
standingalone,doesnot rebut
the presumption of regularity in VA’s mailing process.”). Mr. Chastain
attempts to bolster his
argument by pointing to a letter he wrote, in which he stated that he did
not receive a different VA
correspondence dated March 1995; however, a review of the record or
proceedings reflects that Mr.
Chastain’s letter was written in response to the SSOC he now claims he did
not receive. Compare
R. at 884 (letter from Mr. Chastain stating “in response to your letter
dated October 16, 1995”), with
R. at 915-22 (October 13, 1995, SSOC with an October 16, 1995, date stamp).
Mr. Chastain’s letter
supports the conclusion that he did in fact receive the SSOC. Mr. Chastain
fails to demonstrate
Board error. Hilkert and Ashley, both supra.

V. Conclusion
Upon consideration of the forgoing, the Board’s January 22, 2010 decisions
are AFFIRMED.
DATED:
March 28, 2012
Copies to:
Mark B. Leadlove, Esq.
VA General Counsel (027)
7

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