Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7943
JOHN S. KOOPMANS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, John S. Koopmans, through counsel appeals a July 29,
2019, Board of Veterans’ Appeals (Board) decision that denied the appellant’s motion to revise a
March 1955 rating decision on the basis of clear and unmistakable error (CUE). Record (R.) at
4-10. 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). 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. BACKGROUND
The appellant served on active duty in the U.S. Army from June to December 1953. R. at
- His April 1953 preinduction examination did not reveal any abnormalities. R. at 2245-46.
Service medical records reflect that, in September 1953, the appellant reported experiencing left
upper quadrant pain intermittently for the past 3 years. R. at 2234. An upper gastrointestinal series
revealed a deformity in the mid portion of his duodenum representing an active ulcer. R. at 2240.
A contemporaneous physical examination report reflects a diagnosis of a duodenum ulcer without
obstruction, R. at 2275, and includes the appellant’s report that he began having pain across the
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middle of his abdomen 2 years prior, R. at 2273. See R. at 2271-75. The appellant was admitted to
the hospital, and by November 1953, a repeat upper gastrointestinal series showed the ulcer to be
healed, and the appellant was asymptomatic. R. at 1382. The Medical Board determined that the
date of origin of the appellant’s incapacity was 1951, that he became unfit for duty in September
1953, and that the cause of the incapacity was not incident to service. R. at 2247. The Medical
Board concluded that the appellant’s duodenal ulcer condition existed prior to entry onto active
duty and was not permanently aggravated by active duty, and further recommended that he be
separated from service. R. at 2247; see R. at 1382, 2280.
In January 1954, the appellant applied for disability compensation for ulcers, R. at 2565-68,
and submitted a January 4, 1954, letter from Dr. Meier, R. at 2574. Dr. Meier indicated that he had
been the appellant’s family physician for at least 5 years prior to his entry into military service, and
“[a]t no time, to [his] knowledge, did [the appellant] have an ulcer[] or was he anything but
physically fit.” Id.
After a VA adjudication officer requested review of the appellant’s in-service x-rays, R. at
2561, on February 26, 1954, a VA regional office (RO) denied service connection for a duodenal
ulcer, R. at 2551. The rating decision reflects that the appellant reported a 2-year history of stomach
trouble upon entry into service, that x-rays from September 1953 confirmed a duodenal ulcer, and
that Dr. Meier’s statement was “noted and considered.” Id. The RO concluded as follows:
Based on the evidence in its entirety, it is held by this Board that the evidence shows
existence of duodenal ulcer very shortly after entrance upon active service. On the
basis of well accepted and established medical principles, it is held that this
condition existed prior to service. The evidence is insufficient to show that the
veteran’s service aggravated this condition.
Id.; see R. at 2550-52. The RO informed the appellant of its decision in a March 2, 1954, letter,
stating in part that his “duodenal ulcer was not incurred in or aggravated by [his] service, having
existed prior to such service to the same degree as when [he] was discharged.” R. at 2550.
The appellant filed another application for benefits for duodenal ulcers in November 1954,
R. at 2539-42, and later submitted affidavits from his parents, Dr. Meier, and himself, all to the
effect that he did not have an ulcer or ulcer symptoms prior to service, R. at 2518, 2528-29, 2530.
In the March 1955 decision challenged for CUE, the RO confirmed the February 1954 denial. R. at - The RO acknowledged receipt of Dr. Meier’s February 1955 medical opinion and the
affidavit from the appellant’s parents but determined that Dr. Meier’s statement was duplicative of
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evidence considered in February 1954, and that his parents’ affidavit was not material evidence to
change the denial of service connection for the ulcer condition. Id.; see R. at 2508.
In October 2013, the appellant filed a motion to revise the February 1954 and March 1955
rating decisions. R. at 1408-11. The appellant alleged that the RO failed to correctly apply the
presumption of soundness, asserting that there was not clear and unmistakable evidence that his
condition preexisted service and was not aggravated by service to rebut the presumption, and that,
but for this error, he would have been awarded service connection from December 1953. Id. The
RO found no CUE in the earlier decisions and the appellant perfected an appeal to the Board. R. at
1942-55.
The Board, in October 2015, determined that the February 1954 rating decision was not
final and could not be challenged for CUE, and found no CUE in the March 1955 decision.1 R. at
1109-33. In this regard, the Board concluded that the RO, in 1955, “could reasonably have found
that the evidence of record clearly and unmistakably indicated that the [appellant’s] duodenal
disability preexisted service, . . . and that the condition was not permanently aggravated in service”
so that the presumption of soundness had been rebutted. R. at 1120. This Court affirmed the
Board’s decision, R. at 1097-101, and the U.S. Court of Appeals for the Federal Circuit affirmed
this Court’s decision without opinion, see Koopmans v. Snyder, No. 15-4277, 2017 WL 411134
(Vet. App. Jan. 31, 2017), aff’d sub nom. Koopmans v. O’Rourke, 725 F. App’x. 1008 (Fed. Cir.
2018).
In May 2017, the appellant submitted another request to revise the March 1955 rating
decision on the basis of CUE. R. at 1002-06. He argued that the RO failed to correctly apply the
provisions of 38 C.F.R. § 3.80 (1954), which provided that, “‘[w]hen service connection is
established, subsequent manifestations of the same chronic disease, unless clearly attributable to
intercurrent causes, at no matter how remote a date, are service connected.'” R. at 1004 (quoting
38 C.F.R. § 3.80 (1954)). He maintained that he was entitled to service connection on a
presumptive basis because the evidence in 1955 showed that he was treated for a duodenal ulcer—
a chronic disease—during service. R. at 1004-052 (citing Groves v. Peake, 524 F.3d 1306, 1309
1 In the interim, in April 2014, the RO granted disability benefits for a duodenal ulcer, finding that the
appellant’s preexisting condition had been permanently aggravated by service. R. at 1866-69.
2 The appellant also indicated that Congress had not identified a duodenal ulcer as a chronic condition until
1958, but nonetheless asserted that § 3.80 applied in March 1955. R. at 1004. In this regard, he noted that § 3.80
provided as follows: “For the showing of chronic disease in service, there is a required combination of manifestations
sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, not merely isolated
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(Fed. Cir. 2008) (“The plain language of [38 C.F.R.] § 3.303(b) establishes a presumption of
service connection[, ]rebuttable only by ‘clearly attributable intercurrent causes[,’] for a chronic
disease which manifests during service and then again ‘at any later date, however remote.'”
(quoting 38 C.F.R. § 3.303(b)))).
Thereafter, the appellant appealed the RO’s decision that denied his motion to revise the
March 1955 decision. R. at 997-1000; see R. at 999 (concluding that § 3.80 refers only “to
in-service first onset of a chronic disease” and not when a condition preexisted service and was
not aggravated by service); see also R. at 66-67, 68-93, 986-88, 992-94. In March 2019, the
appellant submitted through counsel a memorandum of law, essentially repeating the contentions
raised in his May 2017 request to revise the 1955 rating decision. R. at 17-19.
On July 29, 2019, the Board denied the appellant’s request to revise the 1955 rating decision
based on his allegations that the RO failed to apply § 3.80. R. at 5-9. This appeal followed.
II. ANALYSIS
A. The Parties’ Arguments
The appellant asserts that “the rebuttal of the [statutory] presumption of soundness does
not result in a bar to establishing service connection under a statutory presumption for service
connection, such as 38 U.S.C. § 1112, or a regulatory presumption for service connection, such as
38 C.F.R. § 3.303(b).[3]” Appellant’s Brief (Br.) at 5. He maintains that, “[u]nder the regulatory
presumption[,] the predicate is that a chronic disease must be noted as such while on active duty,”
id., and that nothing in the language of § 3.80 indicates that a preexisting chronic disease is a bar
to the benefit of the presumption of service connection, id. at 9. The appellant further asserts that
the issue in this appeal “has nothing to do with whether . . . [the RO] ‘reasonably found’ that [his]
duodenal ulcers preexisted” service. Id. at 13 (quoting R. at 9). He contends that, “[i]f the ulcers
existed, neither [he], his family[,] nor his doctor were aware of them[,]” and, therefore, the focus
should be on when the chronic disease manifested—here, during his period of military service. Id.
at 13. He also asks, however, that the Court establish the rule of law that, in the absence of evidence
of a preservice diagnosis or treatment, “‘accepted and established medical principles’ are
findings or diagnosis including the word ‘chronic.'” Id. (quoting 38 C.F.R. § 3.80 (1954)). The Court notes, however,
that a duodenal ulcer was listed as a chronic disease, effective June 24, 1948. 38 C.F.R. § 3.86 (1954).
3 Section 3.303(b) is the successor to § 3.80. See 38 C.F.R. § 3.303(b) (2020).
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insufficient as a matter of law to show the existence of a preservice condition.” Id. at 15 (quoting
R. at 2551); see id. (“[A] condition cannot be considered to have existed for purposes of
determining service connection without competent evidence of a disability as contemplated by
38 U.S.C. § 1110.” (citing Saunders v. Wilkie, 886 F.3d 1356 (2018))). Finally, the appellant
stresses that he is not seeking to reargue CUE regarding the presumption of soundness; indeed, he
maintains that it is unnecessary “because § 3.80 . . . provides for presumptive service connection
. . . without the need for the presumption of soundness.” Id. at 16. Thus, he asks the Court to
remand the matter for the Board to readjudicate his CUE motion under the proper interpretation of
§ 3.80. Id. at 17.
The Secretary urges the Court to affirm the Board’s decision, asserting that the decision is
not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
Secretary’s Br. at 9-23. He asserts that § 3.80 establishes a rebuttable presumption of in-service
incurrence for certain chronic diseases and that the appellant fails to account for § 3.80(b), which
addresses the type of evidence that may be sufficient to rebut the presumption of service
incurrence. Id. at 16; see id. (noting that, among the evidence listed in § 3.80(b), is evidence that
“‘in sound medical reasoning and in consideration of all evidence of record support a conclusion
that the disease in question was not incurred in service within the meaning of Part I or II, Veterans
Regulation 1(a), as amended'” (quoting 38 C.F.R. § 3.80(b))). The Secretary argues that, in March
1955, the RO “essentially determined that any presumption of service connection afforded by
§ 3.80(a) (1954), was rebutted under the provisions of 38 C.F.R. § 3.80(b), because sound medical
reasoning and the consideration of all the evidence of record supported the conclusion that
[the a]ppellant’s ulcer condition was not incurred in service.” Id. at 21. The Secretary further
contends that the “rule of law” sought by the appellant is contrary to § 3.80(b) and 38 U.S.C.
§ 1110, and that the appellant cannot revisit the fact that his ulcer condition preexisted service and
was not aggravated during service, as determined by this Court and affirmed by the Federal Circuit.
Id. at 19, 22.
In his reply brief, the appellant contends that neither the Board, in its decision on appeal,
nor the RO in 1955, relied on § 3.80(b) and, therefore, the Secretary’s argument is a post hoc
rationalization and not contrary to the appellant’s proffered interpretation of § 3.80(a). Reply Br.
at 3. He further asserts that neither this Court nor the Federal Circuit determined that his ulcer
condition preexisted service and was not aggravated during service and that, instead, whether he
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had a preexisting ulcer is controlled by the parties’ agreement in his prior appeal that his ulcer was
not noted at the time of entry to service. Id. at 9-12.
B. Law
A request to revise a final RO decision based on CUE is a collateral attack on that decision.
Disabled Am. Veterans v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000). CUE is established when the
following conditions are met: First, either (1) the correct facts in the record were not before the
adjudicator or (2) the statutory or regulatory provisions in existence at the time were incorrectly
applied. 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); see Hillyard v. Shinseki, 24 Vet.App. 343,
349 (2011), aff’d, 695 F.3d 1257 (Fed. Cir. 2012). Finally, the commission of the alleged error
must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE
at the time that decision was rendered. Russell, 3 Vet.App. at 313-14; see Bustos v. West, 179 F.3d
1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the “manifestly change[d] the outcome”
language in Russell); see also King v. Shinseki, 26 Vet.App. 433, 442 (2014) (“Whether it is
reasonable to conclude that the outcome would have been different is not the standard that must
be met for a motion alleging [CUE] to succeed. . . . [T]he error [must] be ‘undebatable’ and . . .
must have ‘manifestly changed the outcome’ of the decision.” (citing Russell, 3 Vet.App. at 313)),
aff’d sub nom. King v. McDonald, 599 F. App’x 957 (Fed. Cir. 2015).
“CUE is a very specific and rare kind of ‘error’. . . of fact or of 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.” Fugo v. Brown, 6 Vet.App.
40, 43 (1993) (emphasis omitted). “[I]f it is not absolutely clear that a different result would have
ensued,” based upon the facts and law that were understood at the time of the decision, then any
error that may have occurred in a final Board decision is not clear and unmistakable. Id. at 44. The
Court’s review of the Board’s determination on the existence of CUE is limited to whether that
conclusion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law” or unsupported by adequate reasons or bases. 38 U.S.C. §§ 7104(d)(1), 7261(a)(3); see Eddy
v. Brown, 9 Vet.App. 52, 57 (1996). That standard of review, however, “‘contemplates de novo
review of questions of law,'” including whether an applicable law or regulation was correctly
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applied. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005) (quoting Kent v. Principi, 389 F.3d 1380,
1384 (Fed. Cir. 2004)).
As indicated above, allegations of CUE are assessed based on the facts and the law
understood at the time of the decision challenged for CUE. In March 1955, § 3.80(a) provided in
pertinent part:
Under, paragraph I (c), Part I, Veterans Regulation 1 (a)[,] as amended (38 U.S.C.
ch. 12)[,] a chronic or tropical disease becoming manifest to a degree of 10-percent
or more within 1 year (within 2 years as to multiple sclerosis or within 3 years as
to tuberculosis) from the date of separation from active wartime service or service
within the purview of Public Law 28, 82d Congress, . . . will be considered as
having been incurred in service when the conditions specified in paragraph I (c)[,]
Part I, Veterans Regulation 1 (a)[,] as amended, are met. . . . Where there is
affirmative evidence to show that a chronic disorder is due to an intercurrent disease
or injury suffered between the date of separation from active service and the onset
of the chronic disorder, service connection under this section will not be accorded.
When service-connection is established, subsequent manifestations of the same
chronic disease, unless clearly attributable to intercurrent causes, at no matter how
remote a date, are service-connected. . . . 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, not
merely isolated findings or diagnosis including the word “chronic.”
38 C.F.R. § 3.80(a) (1954); see 19 Fed. Reg. 6920 (Oct. 28, 1954). Section 3.80(b) provided in
pertinent part:
Evidence which may be considered in rebuttal of service incurrence of a chronic or
tropical disease will be any evidence of a nature usually accepted as competent to
indicate the time of existence or inception of disease, and medical judgment will be
exercised in making determinations relative to the effect of intercurrent injury or
disease. . . . The expression “affirmative evidence to the contrary,” appearing in
paragraph I (c)[,] Part I, Veterans Regulation 1 (a), as amended, . . . will not be
taken to require a conclusive showing, but such showing as would in sound medical
reasoning and in the consideration of all evidence of record support a conclusion
that the disease in question was not incurred in service within the meaning of Part
I or II, Veterans Regulation 1 (a), as amended.
38 C.F.R. § 3.80(b) (1954). Finally, as relevant here, Paragraph I (c), Part I, Veterans Regulation
1 (a), provided:
That for the purposes of paragraph I(a) hereof [of this part] a chronic disease
becoming manifest to a degree of 10 percent or more within one year from the date
of separation from active service as set forth therein shall be considered to have
been incurred in or aggravated by service as specified therein notwithstanding there
is no record of evidence of such disease during the period of active service: . . .
Provided, however, that—Where there is affirmative evidence to the contrary, or
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evidence to establish that an intercurrent injury or disease which is a recognized
cause of such chronic disease, has been suffered between the date of discharge and
the onset of the chronic disease, or the disability is due to the person’s own
misconduct, service connection will not be in order: Provided further, That the term
“chronic disease” as used in this paragraph shall include . . . ulcers, peptic (gastric
or duodenal).
Veterans Regulation 1(a), Part I (c); see 38 C.F.R. § 3.86(a) (1954) (listing “[u]lcers, peptic
(gastric or duodenal)” as a chronic disease subject to service connection).
C. The 2019 Board Decision
In determining that the March 1955 decision was not the product of CUE, the Board
explained that the provisions of § 3.80 referenced by the appellant “pertain to chronic diseases that
initially manifest in service and persisted or that manifested within a presumptive period following
service and were not applicable to diseases that preexisted military service.” R. at 8-9. The Board
stated as follows:
Under the facts of this particular case, the RO reasonably found that the
[appellant’s] duodenal ulcers preexisted [his] military service. As such, the
provisions of 38 C.F.R. § 3.80 (1954) were not applicable. Accordingly, the Board
finds that there was no CUE in the March 1955 rating decision for the RO’s failure
to apply the regulatory provisions of 38 C.F.R. § 3.80 (1954).
R. at 9. The Board further noted that, “to the extent that the [appellant] and/or his attorney have
indicated that CUE was present in the March 1955 rating decision because the duodenal ulcer
disability did not preexist service, this argument is barred by the principles of res judicata.” Id.
D. Discussion
As noted above, the appellant contends that the Board misinterpreted § 3.80 when it
concluded that the provision did not apply to preexisting conditions and that the Secretary’s
argument on appeal concerning § 3.80(b) is a post hoc rationalization and not contrary to the
appellant’s interpretation of § 3.80(a). Appellant’s Br. at 8-9; Reply Br. at 3. He further asks the
Court to establish the rule of law that, in the absence of evidence of a preservice diagnosis or
treatment, “‘accepted and established medical principles’ are insufficient as a matter of law to show
the existence of a preservice condition.” Appellant’s Br. at 15 (quoting R. at 2551).
The Court is not persuaded that remand is warranted for several reasons. First,
determinations as to CUE are made based on the law as it existed at the time of the decision
challenged for CUE. Second, to the extent that the appellant is now alleging that the evidence in
1955 was legally insufficient to support the RO’s determination that his ulcer preexisted service,
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he did not raise this allegation of CUE in his 2017 motion to revise the March 1955 rating decision.
Rather, as the Board stated, the appellant argued only that the evidence in 1955 “was sufficient to
identify [his] duodenal ulcers as a disease entity and that the chronicity of the disease was
confirmed by the recommendation and subsequent discharge due to medical unfitness.” R. at 8;
accord R. at 1004-05 (May 2017 motion). Accordingly, the Court lacks jurisdiction to consider
the merits of this new CUE theory. See Acciola v. Peake, 22 Vet.App. 320, 325 (2008) (citing
Sondel v. Brown, 6 Vet.App. 218, 219-20 (1994)); cf. Jarrell v. Nicholson, 20 Vet.App. 326, 333
(2006) (en banc) (“[E]ach wholly distinct and different CUE theory underlying a request for
revision is a separate matter and, when attacking a prior RO decision, each must be presented to
and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the
merits of the matter.”).
Further, with regard to the CUE theory raised below, even assuming that the Board erred
in finding that § 3.80(a) did not apply in 1955, the appellant has not shown that any error is
prejudicial to the outcome of his motion to revise the 1955 rating decision. See 38 U.S.C.
§ 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki
v. Sanders, 556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies to the
Court’s review of Board decisions and that the burden is on the appellant to show that he suffered
prejudice as a result of VA error); see also Simmons v. Wilkie, 30 Vet.App. 267, 278-79 (2018)
(explaining that the Court’s statutory mandate to account for prejudicial error requires the Court to
assess whether any Board error in concluding that there was no CUE in the underlying decision
was prejudicial to the claimant), aff’d, 964 F.3d 1381 (Fed. Cir. 2020). In that regard, even
assuming § 3.80(a) applied in 1955, to establish a manifest change in outcome and prevail on his
motion to revise the 1955 rating decision, the appellant must show that its application would have
resulted in an award of service connection. See King, 26 Vet.App. at 441 (“[A] manifest change in
the outcome of the adjudication means that, absent the alleged [CUE], the benefit sought would
have been granted at the outset.”); Fugo, 6 Vet.App. at 43.
Hence, although the Board in the decision on appeal did not rely on § 3.80(b), the Court
cannot disregard the Secretary’s argument and VA’s regulations in effect in 1955, which provided
that the § 3.80(a) presumption of service incurrence was rebuttable. In March 1955, § 3.80(b)
provided that the presumption of service incurrence of a chronic disease may be rebutted, described
the type of evidence that would be considered, and outlined the standard of proof necessary for
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showing that the disease in question was not incurred in service. 38 C.F.R. § 3.80(b) (1954). Yet,
the appellant did not acknowledge in his motion for revision, which was submitted through
counsel, that the presumption was rebuttable or argue that the evidence was legally insufficient to
rebut the presumption. See R. at 1002-06; see also Andrews v. Nicholson, 421 F.3d 1278, 1283
(Fed. Cir. 2005) (finding VA’s duty to read pleadings sympathetically inapplicable to CUE
pleadings filed by counsel); Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001) (“The party
bringing a CUE challenge . . . . must describe the alleged error ‘with some degree of specificity’
and must provide persuasive reasons ‘as to why the result would have been manifestly different
but for the alleged error.'” (quoting Fugo, 6 Vet.App. at 44)).
In sum, because it is not absolutely clear that application of § 3.80 would have resulted in
an award of service connection, any error by the Board in its analysis of the presumption of service
incurrence is harmless. See Sanders, 556 U.S. at 411-14; see also King, 26 Vet.App. at 441; Fugo,
6 Vet.App. at 43-44. Accordingly, the Court will affirm the Board’s decision.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s July 29,
2019, decision is AFFIRMED.
DATED: February 16, 2021
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
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