Veteranclaims’s Blog

August 20, 2013

Single Judge Application Romanowsky v. Shinseki, __ Vet.App. __, __, No. 11-3272, 2013 WL 3455655, at *4 (July 10, 2013)

Excerpt from decision below:
“Although the service treatment records reflected that the appellant had knee problems 10 years earlier, the Board found that this evidence did not establish the element of current disability and, therefore, that the RO had not erred when it concluded that there was “no current clinical diagnosis of a knee condition.” R. at 13. See generally Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that although 38 U.S.C. § 105(a) “establishes a presumption that the disease or injury incurred during active duty is service-connected, the veteran seeking compensation still must show the existence of a present disability and that there is a causal relationship between the present disability and the injury [or] disease . . . incurred during active duty”); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (deferring to the Secretary’s interpretation of 38 U.S.C. § 1110 as requiring evidence of a current disability). But see Romanowsky v. Shinseki, __ Vet.App. __, __, No. 11-3272, 2013 WL 3455655, at *4 (July 10, 2013)(holding “when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency” (emphasis added)).
===========================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-998
YVONNE A. BEST, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Yvonne A. Best, appeals through counsel a
November 22, 2011, Board of Veterans’ Appeals (Board) decision that determined
there was no clear and unmistakable error (CUE) in a September 2002 rating decision, which denied entitlement to disability compensation for patellofemoral syndrome. Record of Proceedings (R.) at 3-15. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the appellant filed a reply brief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board’s decision.

I. FACTS
The appellant served on active duty in the U.S. Marine Corps from March
1989 to October
1992. R. at 586. Shortly after joining the military, the appellant began
to suffer from knee pain that
continued during her active duty. R. at 347, 352, 354, 505. On April 13,
1992, a Medical Board
found that the appellant was unable to carry out her duties as an active
duty member as a result of
her bilateral knee condition, which had been diagnosed as patellofemoral
pain syndrome. R. at 357-
58. The Medical Board noted that the appellant’s knees had not improved
despite physical therapy

and anti-inflammatory medications, and that additional treatment was “not
expected to allow her to
return to full duty.” R. at 358. On October 23, 1992, the appellant was
discharged as a result of
physical disability and received disability severance pay. R. at 586.
Eight years later, on November 9, 2000, the appellant filed a claim for VA
disability
compensation for “intense pain in [her] knees, also patell[o]femoral
syndrome.” R. at 333-36. In
a January 2001 statement, the appellant reported that she had not received
treatment for her knees
after service because she “was told there was not much that could be done,”
but that she had taken
pain medication and had informedherphysicianduringanannualphysical that
she experienced knee
pain. R. at 326-27.
On September 12, 2002, the VA regional office (RO) denied the appellant’s
application for
VA disability compensation for patellofemoral syndrome “because the
medical evidence of record
fail[ed] to show that this disability has been clinically diagnosed.” R.
at 308-11. The appellant did
not appeal that decision and it became final.
In March 2004, the appellant requested that her claim be reopened. R. at
306. Following
a July 2004 VA compensation and pension examination, which diagnosed (1) “[
i]njury to left knee,
service-connected,” and (2) “[b]ilateral patellofemoral pain syndrome of
the knee, service-
connected” (R. at 295), the RO granted VA disability compensation for
patellofemoral pain
syndrome, effective March 4, 2004 (R. at 285-92). See R. at 293-95. The
appellant filed a Notice
of Disagreement seeking an earlier effective date. R. at 283. The
appellant’s representative
subsequently argued that the September 2002 rating decision was the
product of CUE, noting that
the appellant had been medically discharged from service and had shown “in-
service treatment,
continuity of treatment[,] and a present diagnosis.” R. at 154-55; see
also R. at 149-50.
This appeal stems from a July 2008 rating decision, which determined that
the September
2002 rating decision did not contain CUE because “[t]here was no evidence
of current diagnosis or
continuity of treatment since discharge from service.” R. at 106; see R.
at 101-08. In September
2010, the appellant’s current counsel argued that the September 2002
rating decision contained CUE
because the evidence showed that the appellant was medically discharged
with a diagnosis of
patellofemoral pain syndrome. R. at 23-24. The appellant’s counsel argued
that had VA been aware
of the appellant’s medical discharge, it would have been compelled to
reach two inevitable
2

conclusions – that her patellofemoral syndrome was a permanent
condition, and that she continued
to suffer from it at the time of the 2002 rating decision. R. at 24.
In the decision here on appeal, the Board found, based on the evidence of
record and the law
then in effect, that the September 2002 rating decision did not contain an
undebatable error that
would have manifestly changed the outcome. R. at 4. The Board noted that
the “existence of a
current disability is the cornerstone of a claim for VA disability
compensation,” but found that there
was no “clinical diagnosis [or] disability of a knee disorder on file” at
the time of the September
2002 rating decision. R. at 13. This appeal followed.

II. ANALYSIS
A request for revision based on CUE is an exception to the rule of
finality and is grounds to
reverse or revise a decision by the Secretary, where the evidence
establishes CUE in a final RO or
Board decision. See 38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20
Vet.App. 52 (2006);
38 C.F.R. §§ 3.105(a), 20.1400-.1411 (2013). CUE can be established by
meeting the following
conditions. First, either (1) the correct facts contained in the record
were not before the adjudicator,
or (2) the statutory or regulatory provisions in effect at the time were
misapplied. See Damrel v.
Brown, 6 Vet.App. 242, 245 (1994). Second, the alleged error must be ”
undebatable,” not merely
“a disagreement as to how the facts were weighed or evaluated.” Russell v.
Principi, 3 Vet.App.
310, 313-14 (1992) (en banc). Finally, the error must have “manifestly
changed the outcome” of the
decision being attacked on the basis of CUE at the time that decision was
rendered. Id. at 313-14,
320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (
expressly adopting the
“manifestly changed the outcome” language in Russell, supra).
When the Court reviews a Board determination that there was no CUE in a
prior final
decision, the Court’s review is generally limited to determining whether
the Board’s conclusion is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 38 U.S.C.
§ 7261(a)(3)(A), and whether it is supported by adequate reasons or bases,
38 U.S.C. § 7104(d)(1).
See Eddy v. Brown, 9 Vet.App. 52, 57 (1996). However, whether the claimant
has presented a valid
CUE allegation and whether an applicable law or regulation was not applied
are questions of law
that are reviewed de novo. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005);
see also Kent v. Principi,
389 F.3d 1380, 1384 (Fed. Cir. 2004).
3

The appellant argues for reversal, asserting that the Board’s conclusion
that the record did
not contain a current diagnosis of patellofemoral pain syndrome in 2002
was clearly erroneous.
Appellant’s Brief (Br.) at 5-7. Making an argument similar to her argument
to the Board, the
appellant contends that her medical discharge for patellofemoral pain
syndrome established that her
disability was of a permanent nature and, therefore, demonstrated that she
had a current disability
at the time of the 2002 rating decision. Id. at 6. The appellant also
argues that VA was required to
“presume” that the findings by the physical evaluation board were accurate.
Id. Given the lack of
any evidence demonstrating that her condition had improved or resolved,
she asserts, the record
undebatably established that she continued to suffer from patellofemoral
pain syndrome at the time
of the 2002 rating decision. Id. at 6-7. The Secretary argues for
affirmance, asserting that the
Board’s decision contains an adequate statement of reasons or bases
explaining why the 2002 rating
decision was not the product of CUE. Secretary’s Br. at 8-14.
Initially, the Court notes that the appellant incorrectly identifies the
Court’s standard of
review in this matter. Id. at 5-7. The Court does not review the Board’s
decision for clear error.
Rather, as noted above, the Court’s review is generally limited to whether
the Board’s conclusion is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” see Eddy,
supra. Here, the appellant fails to demonstrate, as is her burden, that
the Board’s decision is
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. See Hilkert
v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant
bears the burden of
demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir.
2000) (table); see
generally Berger v. Brown, 10 Vet.App. 166, 169 (1997).
AsnotedbytheBoard, establishing entitlement to
disabilitycompensationgenerallyrequires
medical, or in certain circumstances, lay evidence of (1) a current
disability; (2) an in-service
incurrence or aggravation of a disease or injury; and (3) a nexus between
the claimed in-service
disease or injury and the present disability. Davidson v. Shinseki, 581 F.
3d 1313, 1316 (Fed. Cir.
2009); Hickson v. West, 12 Vet.App. 247, 252 (1999).
In determining whether the RO erred in 2002 when it concluded that there
was no current
diagnosis of a disability, the Board found no merit to the appellant’s
argument that the RO was
unaware of her medical discharge, noting that the 2002 rating decision
reflected consideration of the
appellant’s service treatment records. R. at 13; see also R. at 311 (
listing the appellant’s service
4

medical records as evidence). Although the service treatment records
reflected that the appellant had knee problems 10 years earlier, the Board found that this evidence did not establish the element of current disability and, therefore, that the RO had not erred when it concluded that there was “no current clinical diagnosis of a knee condition.” R. at 13. See generally Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that although 38 U.S.C. § 105(a) “establishes a presumption that the disease or injury incurred during active duty is service-connected, the veteran seeking compensation still must show the existence of a present disability and that there is a causal relationship between the present disability and the injury [or] disease . . . incurred during active duty”); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (deferring to the Secretary’s interpretation of 38 U.S.C. § 1110 as requiring evidence of a current disability). But see Romanowsky v. Shinseki, __ Vet.App. __, __, No. 11-3272, 2013 WL 3455655, at *4 (July 10, 2013)(holding “when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must
address in determining whether a current disability existed at the time the claim was filed or during its pendency” (emphasis added)).

To the extent that the appellant argued that her medical discharge itself
established that her disability was permanent and therefore “current,” the Board stated that section 1203(b)(3) of title 10, U.S. Code, permits a medical discharge for a disability that “is or may be of a permanent nature,” but does not contain a presumption of permanent disability.” R. at 14 (emphasis added).
Significantly, the appellant’s argument that her discharge establishes
permanence, ignores the full text of section 1203(b)(3) indicating that the disability need not be permanent, only that the disability “is or may be of a permanent nature.” 10 U.S.C. § 1203(b)(3) (emphasis added). Thus, contrary to the appellant’s argument, the Board did not ignore the Medical Board’s findings. Rather, the Board reviewed the appellant’s service treatment records and the 1992
Medical Board’s findings, but found that neither characterized her knee disabilities as “permanent.” R. at 14-15.
The appellant disagrees with the Board’s assessment of the evidence,
asserting that her discharge “should be treated as a finding that [her] condition was of a permanent nature,” based on the Medical Board’s notation that her “patellofemoral pain syndrome had not been improved by physical therapy and anti-inflammatory drugs, and that further treatment would not improve her
condition.” Reply Br. at 2 (referring to R. at 358). In fact, however, the
report states that
5

“[a]dditional treatment is not expected to allow her to return to full
duty.” R. at 358. The Board did not view this evidence as clinically characterizing the appellant’s knee disabilities as permanent, and
the appellant’s disagreement with how the facts were evaluated cannot
constitute CUE. See Russell, supra. As a result, the Court can discern no error in the Board’s conclusion that the RO’s failure to discuss section 1203(b)(3) was not CUE. Given the absence of evidence characterizing the appellant’s knee disability as permanent, the appellant fails to demonstrate that a different result
would have undebatably ensued. See id.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s November 22, 2011, decision is AFFIRMED.
DATED: August 2, 2013
Copies to:
Karl Kazmierczak, Esq.
VA General Counsel (027)
6

Advertisements

1 Comment »

  1. I was able to find good information from your blog articles.

    Comment by dallas personal injury attorney — August 20, 2013 @ 8:31 pm


RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: