Veteranclaims’s Blog

November 14, 2013

Single Judge Application; Romanowsky v. Shinseki, __ Vet.App. __, __, No. 11-3272, 2013 WL 3455655, at *4 (July 10, 2013); McClain v. Nicholson, 21 Vet. App. 319(2007)

An additional citation, not contained below, that one might want to look at is:

McClain v. Nicholson, 21 Vet. App. 319(2007) (the requirement a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim)

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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)).”
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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 informed her physician during an annual physical 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, serviceconnected”
(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
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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).
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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).
As noted by the Board, establishing entitlement to disability compensation generally requires
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)
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