Veteranclaims’s Blog

August 15, 2017

Single Judge Application; CUE; 1953 Serviceconnection;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:23 pm

Excerpt from decision below:

“DAVIS, Chief Judge: U.S. Coast Guard veteran Gale E. Brown appeals through counsel a November 7, 2016, decision of the Board of Veterans’ Appeals (Board) that determined there was no clear and unmistakable error (CUE) in a July 10, 1953, Board decision that denied service connection for bilateral uveitis.1 The parties neither requested oral argument nor identified issues that they believe require a precedential decision of the Court. For the following reasons, the Board’s November 2016 decision will be reversed and remanded with instruction to amend the 1953 Board decision to include service connection for Mr. Brown’s bilateral uveitis.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0287
GALE E. BROWN, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Coast Guard veteran Gale E. Brown appeals through counsel a November 7, 2016, decision of the Board of Veterans’ Appeals (Board) that determined there was no clear and unmistakable error (CUE) in a July 10, 1953, Board decision that denied service connection for bilateral uveitis.1 The parties neither requested oral argument nor identified issues that they believe require a precedential decision of the Court. For the following reasons, the Board’s November 2016 decision will be reversed and remanded with instruction to amend the 1953 Board decision to include service connection for Mr. Brown’s bilateral uveitis.
I. BACKGROUND
Mr. Brown served on active duty from 1943 to 1946, including an assignment in Sasebo,
Japan, which is approximately 40 miles from Nagasaki. His ship arrived in Sasebo 83 days after
the atomic bomb was dropped on Nagasaki. This assignment included an excursion to Omura
Airfield, which is located on a hill overlooking Nagasaki and approximately 20 miles from the
1 “Uveitis” is “an inflammation of part or all of the uvea, commonly involving the other tunics of the eye
(sclera, cornea, and retina).” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY [hereinafter DORLAND’S] 2014 (32d ed.
2012).
2
city. Mr. Brown now believes that his physical problems after service were caused by exposure
to ionizing radiation, and he submitted evidence to that effect when he reopened his claim in 2013.
On the return voyage from Japan, Mr. Brown experienced painful ankles and a swollen
knee. The pharmacist’s mate aboard ship tentatively attributed these symptoms to Mr. Brown’s
standing on steel decking while serving as the ship’s barber. Mr. Brown also experienced a fever
and pain in the lower right quadrant of his abdomen, the cause of which was suspected as
appendicitis, and he was assigned to bedrest for the balance of the voyage. Testing conducted at
a stateside hospital, however, refuted any diagnosis of appendicitis.2
After service, Mr. Brown’s physical problems multiplied. The pain in his joints spread to
his right hip, right shoulder, and a knuckle on his right hand. In 1946 he reported furuncles3 on
his upper back and shoulders. In early 1949 he began to suffer ulcerations or sores in his mouth,
throat, and tongue. In the spring of 1950 he began to have difficulties with his vision, which
eventuated in the loss of his right eye and legal blindness in his left eye.
The vision difficulties led to his admission to Bethesda Naval Hospital in June 1950, where
physicians diagnosed his condition as Stevens-Johnson syndrome.4 Based on this diagnosis, Mr.
2 In June of 1952, physicians removed Mr. Brown’s appendix while searching for a “focus of infection” to
account for his diverse symptoms. A January 1953 letter from Mr. Brown’s private physician asserted that
abnormalities in the removed appendix supported an assessment that he had suffered bouts of appendicitis in service.
Noting improvement in Mr. Brown’s oral and ocular symptoms, which proved to be temporary, the physician
concluded that the “recurrent appendicitis beginning in 1945 while he was in service should definitely be considered
as a source of his later disease processes involving his mouth and eyes.” Record (R.) at 2544. A 2013 rating decision
granted service connection for the residuals of the appendectomy, but denied service connection for uveitis, poly
arthritis, and Behcet’s syndrome, described below.
3 A “furuncle” is “a painful nodule formed in the skin by circumscribed inflammation of the corium and
subcutaneous tissue, enclosing a central slough or ‘core.'” DORLAND’S at 751.
4 “Stevens-Johnson syndrome” is “a syndrome considered to be a severe form of erythema multiforme. A
respiratory prodrome precedes characteristic mucocutaneous lesions and other symptoms. Large areas of the skin and
oronasal, genital, and colonic mucous membranes develop macules and become necrotic; hemorrhagic crusts appear
on the lips. Ocular lesions may include conjunctivitis, iritis, keratitis, and corneal perforations and opacities leading
to blindness. DORLAND’S at 1849. A “prodrome” is “a premonitory symptom or precursor; a symptom indicating the
onset of a disease.” Id. at 1522. “Erythema multiforme” is “either of two conditions characterized by sudden eruption
of erythematous papules, some of which evolve into target lesions consisting of a central papule surrounded by a
discolored ring or rings. Both represent reactions of the skin to factors such as viral skin infections (especially herpes
simplex), agents (including drugs) that are ingested or irritate the skin, malignancy or pregnancy. The milder type is
called (e. multiforme minus) and the more severe type is called (Stevens-Johnson syndrome).” Id. at 643 (italics in
original). “Erythmatous” means “characterized by erythema,” which is redness of the skin produced by congestion of
the capillaries. Id.
At the time of the 1953 Board decision, “Stevens-Johnson syndrome” was defined as “ectodermosis
pluriorificialis, dermatostomatalis, erythema multiforme exudativum with stomatitis. An eruptive fever; vesicles
appear on the lips, tongue, and buccal mucosa, accompanied by conjunctivitis, rhinitis and balanitis and frequently
3
Brown filed a claim in 1950 for uveitis (some definitions of “Stevens-Johnson syndrome” list
uveitis as a symptom). See, e.g., DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1833 (30th ed.
2003). A July 1953 Board decision, which is the subject of this appeal, denied that claim. The
evidence before the 1953 Board included a diagnosis of Behcet’s syndrome.5 The 1953 Board
noted that Mr. Brown contended that “he incurred a systemic disorder in service [that] resulted in
the eye disability.” R. at 2489.
In a December 2014 decision, the Board found that Mr. Brown had submitted new and
material evidence to reopen his claim and granted service connection for bilateral uveitis and
Behcet’s syndrome. A January 2015 rating decision implementing the Board’s decision assigned
a 70% disability rating for the bilateral uveitis and a 0% rating for Behcet’s syndrome, both
effective July 15, 2011. The Board found no CUE in the 1953 Board decision, however, and after
a remand from this Court, maintained that conclusion in the decision here on appeal.
II. ANALYSIS
Mr. Brown argues for an earlier effective date on the basis that the 1953 Board decision
contained CUE. He asks the Court to reverse the Board decision here on appeal, or in the
alternative, to remand the case for a sufficient statement of reasons or bases to sustain the Board’s
determination of no CUE in the 1953 Board decision.
CUE is a “very specific and rare kind of error. . . 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.” 38 C.F.R. § 20.1403 (2017). CUE is
corneal ulceration, panopthalmia and blindness may result.” STEDMAN’S MEDICAL DICTIONARY 1299 (18th ed. 1953).
5 “Behcet’s syndrome” is “a variant of mentrophilic dermatitis of unknown etiology involving the small blood
vessels, and characterized by recurrent apthous ulceration of the oral and pharyngeal mucous membranes and the
genitalia, with skin lesions, severe uveitis, retinal vasculitis, and optic atrophy, and often involvement of the joints,
gastrointestinal system, and central nervous system.” DORLAND’S at 1822 (emphasis added). “Apthous” means
“pertaining to, characterized by, or affected with aphthae,” which are “small ulcer[s], such as a round lesion with a
grayish exudate surrounded by a red halo characteristic of recurrent aphthous stomatitis,” id. at 116. “Apthous
stomatitis” is “inflammation of the oral mucosa, due to local or systemic factors, which may involve the buccal and
labial mucosa, palate, tongue, floor of the mouth and the gingivae.” Id. at 1776.
At the time of the 1953 Board decision, “Behcet’s syndrome” was defined as “unilateral or bilateral
conjunctivitis, corneal ulceration which may lead to uveitis, hypopyon and blindness, combined with ulcers of the
mouth and external genital organs; thought to be due to filtrable virus.” STEDMAN’S MEDICAL DICTIONARY 1167
(17th ed. 1949). Another contemporary reference defined “Behcet’s syndrome” as “recurrent ulceration of the genitals,
aphthous lesions of the mouth, uveitis or iridocyclitis followed by hypopyon.” THE AMERICAN ILLUSTRATED
MEDICAL DICTIONARY 1485 (22d ed. 1951).
4
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, 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), and finally, the alleged
error must be shown to have “manifestly changed the outcome” of the decision being attacked on
the basis of clear and unmistakable error at the time that decision was rendered. Id.; see also
Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the “manifestly
changed the outcome” language in Russell).
The Court’s review of a Board determination regarding CUE in an earlier decision is limited
to whether the Board decision on appeal was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” and whether the decision is supported by an adequate
statement of reasons or bases. 38 U.S.C. § 7261(a)(3)(A); see Livesay v. Principi, 15 Vet.App.
165, 174 (2001) (en banc); see also 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”). However, the Court reviews de novo
whether an applicable law or regulation was correctly applied, and if there is an undebatable error
in the application of such law or regulation, the Board’s failure to find such an error in the decision
on appeal “would be at least not in accordance with law, if not also arbitrary or capricious or an
abuse of discretion.” Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005).
In 1953, as now, VA was required to base its service connection decisions, not only on
service medical records, but also on “all pertinent medical and lay evidence.” 38 U.S.C. § 726
(predecessor to 38 U.S.C. § 1154(a)). The medical evidence before the 1953 Board included three
opinions favorable to Mr. Brown’s claim. In a November 1950 medical summary, an ophthalmic
resident at the Ohio State University reported diagnoses of bilateral uveitis and “Poly arthritis of
the ankles, knees, and right third finger.” R. at 2759. The resident reported an assessment of the
chairman of the ophthalmology department that “the uveitis in this case has its origin from the
arthritic condition of the patient.” Id. An April 1951 letter from a private physician diagnosed
chronic uveitis, aphthous ulcers of the mucous membranes and skin, and recurrent arthritis of the
knee. This physician stated: “It is my impression that this is a clear[-]cut case of Behcet’s
syndrome. If this is so, it undoubtedly had its onset with the arthritis while the patient was in
5
service. It is my impression that this uveitis is definite[ly] service connected.” R. at 2649. Finally,
a June 1951 letter from the chief resident at Ohio State University stated that “it is my conviction
that [Mr. Brown’s] ocular pathology, namely; anterior and posterior uveitis involving both eyes, is
intimately involved with his systemic disorder, namely; migratory poly arthritis, stomatitis, and
periodic febrile episodes.”6 R. at 2611.
There also were multiple lay statements before the 1953 Board concerning Mr. Brown’s inservice
symptoms. A June 1951 statement from the pharmacist’s mate during the return voyage
from Japan confirmed that Mr. Brown had sought treatment for swollen ankles and feet, as well as
fever and abdominal pain in his lower right side. Another statement from a shipmate noted that
Mr. Brown complained, both while on ship and while on shore leave, that his feet were “bothering
him.” R. at 2576. A December 1950 statement from Mr. Brown’s wife stated that he complained
of bad feet and swollen ankles during service.
The 1953 Board noted the foregoing evidence and mentioned other medical evidence as
well. The Board noted an April 1951 medical summary, which the Secretary identifies as a VA
examination report, diagnosing “uveitis, chronic . . . etiology unknown.” R. at 2646, 2690.
Additionally, the Board noted a 1948 record of hospitalization for removal of a pilonidal cyst from
the base of the spine, with no record of “complaints or findings pertinent to the condition at issue
[] reported during that period of hospitalization.” R. at 2489.
Without further discussion or analysis, the 1953 Board concluded as follows:
The service medical records do not show treatment in service for an eye
disease or a systemic disorder with characteristic ocular manifestations and
no significant abnormalities were reported found on examination prior to
the veteran’s separation from service or during hospitalization beginning in
November 1948. The symptoms reported subsequent thereto do not
establish the existence of chronic uveitis with defective vision sufficiently
proximate to date of discharge upon which to conclude it had its onset in
service.
R. at 2491 (emphasis added). This Board decision was not appealable in 1953.
In 1953, as now, it was “the permanent policy of the Veterans’ Administration that service
connection may be granted for any disease properly diagnosed after discharge from war or
peacetime service when all the evidence, including lay evidence, and all evidence pertinent to the
circumstances of service, establishes . . . that the disease was incurred in service.” 38 C.F.R. § 3.78
6 “Febrile” means “1. pertaining to fever 2. characterized by fever.” DORLAND’S at 687.
6
(1953) (emphasis added). As discussed below, the 1953 Board decision incorrectly applied this
regulation and the 2016 Board’s conclusion that the 1953 decision did not contain CUE is “at least
not in accordance with law, if not also arbitrary or capricious or an abuse of discretion.” Joyce,
19 Vet.App. at 43.
To the extent that the Board found “no significant abnormalities” at Mr. Brown’s separation
from service, that assessment is inaccurate. The record contains no separation examination per se,
but does include a “Final Medical” certificate. That certificate notes that Mr. Brown had a
“condyloma accuminatum” on his penis 10 days prior to separation.7 R. at 2882. Thus, Mr. Brown
suffered from a skin eruption of the genitalia at separation, one of the symptoms of Behcet’s
syndrome. See supra note 5. Therefore, the 1953 Board denied the existence of evidence in the
claims file that indeed did exist. Consequently, the 1953 Board either violated the regulation
requiring that the decision be based on all the evidence of record or else made an erroneous finding
of fact. See 38 C.F.R. § 3.63(a) (1953) (predecessor to § 303(a)). Either failure is sufficient to
satisfy the first and second CUE requirements. Bouton v. Shinseki, 23 Vet.App. 70, 72 (2008).
Thus, the record before the 1953 Board included evidence of at least three in-service
symptoms that are characteristic of Behcet’s syndrome and two diagnoses of that condition. 8 He
had “involvement of the joints” (aching ankles and knee), “involvement of the gastrointestinal
system” (symptoms suggestive of appendicitis, but not confirmed as such), and an ulceration of
the genitalia (condyloma accuminatum). See supra note 5. Furthermore, fever is one of the
symptoms of Stevens-Johnson syndrome, another systemic disorder suggested as an alternate
diagnosis. See R. at 2611; supra note 4.
The significance of these symptoms manifesting during service is shown by the medical
evidence of record. Three medical reports linked Mr. Brown’s eye disability to the quasi-arthritic
symptoms manifested in service that signaled the beginning of a systemic disorder,9 which was
7 A “condyloma accuminatum” is “a type of papilloma usually found on the mucous membrane of skin of the
external genitals or in the perinanal region.” DORLAND’S at 402.
8 In a January 1951 consultation sheet, a VA doctor noted a provisional diagnosis of Behcet’s syndrome, and
also noted possible alternative diagnoses of erythema multiforme exudativium, erythema pluriorificiole, and Stevens-
Johnson syndrome. This doctor stated that “I believe that all of [these conditions] are one and the same.” R. at 2730,
2738.
9 During his 2014 Board hearing, Mr. Brown noted that the aches in his ankles and knees that he experienced
during and after service would wax and wane; he observed that this phenomenon was inconsistent with arthritis, which
is a degenerative condition that he didn’t have at age 89. R. at 3208. The recurrent aches he experienced in his ankles
and knee can constitute a symptom of Behcet’s syndrome without a formal (or correct) diagnosis of arthritis. See
7
diagnosed as either Stevens-Johnson syndrome or Behcet’s syndrome. Either condition is, by
definition, a “systemic disorder with characteristic ocular manifestations.” A fourth medical
opinion linked the visual difficulties to an infection resulting from recurrent bouts of appendicitis,
which constitutes involvement of the gastrointestinal system–yet another manifestation of
Behcet’s syndrome. The in-service occurrence of the painful ankles and knee, which Mr. Brown
related, is confirmed by lay evidence provided by three other people, and the 1953 Board made no
negative credibility finding with respect to any of this lay evidence. Therefore, the record
contained both documentary and lay evidence of in-service symptoms that the medical evidence
diagnosed as prodromic symptoms of a systemic condition that eventuated in Mr. Brown’s visual
disabilities.
The 1953 Board’s apparent rejection of this body of evidence necessarily rests on the
absence of evidence, particularly with respect to ocular symptoms, during service and for 4 years
after. See R. at 14 (Board decision here on appeal) (“It appears that the [1953] Board assigned
more weight to the [v]eteran’s service treatment records that lack [] a reported history of relevant
symptoms prior to 1950, and the lack of relevant treatment or findings for several years following
separation from service, than to the private etiological opinions.”). Then as now, however, the
absence of evidence could be counted as substantive negative evidence only if there was reason to
believe that silence in a record has a tendency to prove or disprove a relevant fact. See AZ v.
Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (discussing common law evidentiary principles
eventually incorporated in FED. R. EVID. 803(7)); Molitor v. Shulkin, 28 Vet.App. 397, 410 (2017)
(and cases cited thereat) (“The absence of evidence only tends to prove the nonexistence of a fact
if the fact would ordinarily have been recorded.”).
Here, there is no foundation to establish that the lack of records cited by the 1953 Board
should constitute relevant or pertinent evidence against Mr. Brown’s claim. To the extent that the
Board may have discounted the lay evidence as to the arthritis-like symptoms in service, the
underlying assumption would have to be that such symptoms would have been recorded in the
ship’s medical records if they had occurred. However, the affidavit from the pharmacist’s mate,
who would have been the servicemember to record such complaints or treatment, conclusively
refutes that notion. The pharmacist’s mate confirms that Mr. Brown sought treatment for aching
supra note 5 (noting “involvement of the joints” as a symptom of Behcet’s syndrome).
8
ankles and knee, but the service medical record does not so reflect. There is also no reason to
believe that preliminary or prodromic symptoms of a systemic disease would have been recognized
as such in service, much less that the systemic disease would have been recorded in service records.
Cf. Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012) (“[T]here is no evidentiary foundation, or
even a logical reason to suppose, that in the context of treatment by a corpsman . . . aggravation of
a preexisting condition would have been considered, much less recorded.”). Furthermore, the
evidence before the 1953 Board did not establish that Mr. Brown’s eye difficulties would be
expected to manifest at the same time as other symptoms of the systemic disorder during service
so as to have been recorded in service records. Three medical reports, however, linked the ocular
difficulties with the earlier arthritis-like symptoms, confirming that visual disability is an endstage
or delayed onset result of Behcet’s syndrome (or Stevens-Johnson syndrome). Finally, there
is no reason to expect that a report on a surgical procedure to remove a cyst would list every other
symptom that Mr. Brown may have been experiencing in 1948.
There was therefore no relevant or pertinent negative evidence against Mr. Brown’s claim
before the 1953 Board. The absence of records on which the Board decision primarily depends
does not constitute relevant or pertinent negative evidence. Additionally, the April 1951 VA report
stating that the etiology of Mr. Brown’s uveitis was unknown is not negative evidence, but an
inconclusive report that provided no evidence one way or another. See Fagan v. Shinseki, 573
F.3d 1282, 1289 (Fed. Cir. 2009) (inconclusive medical report is “not pertinent evidence one way
or the other” regarding service connection). This report adds nothing to the Board’s analysis.
Regardless of whether it was triggered by exposure to ionizing radiation, the evidence before the
1953 Board clearly established that Mr. Brown incurred a systemic disorder in service, now
established as Behcet’s syndrome, that resulted in his visual disabilities.
In sum, all the relevant or pertinent evidence before the 1953 Board “militated in support
of the claim,” thus establishing CUE. Bouton, 23 Vet.App. at 72; Joyce v. Nicholson, 19 Vet.App.
36, 48 (2005); Sondel v. West, 13 Vet.App. 213, 216 (1999); Crippen v. Brown, 9 Vet.App. 412,
422 (1996). The Board’s conclusion that the 1953 Board decision did not contain CUE was
arbitrary and capricious and not in accordance with law. The Court therefore will reverse the
Board’s November 2016 decision.
9
III. CONCLUSION
On consideration of the foregoing, the Board’s November 7, 2016, decision is REVERSED
and the case is REMANDED with instruction to amend the 1953 Board decision to award service
connection for Behcet’s syndrome including bilateral uveitis and determine the appropriate
disability rating or ratings since 1953.
DATED: August 14, 2017
Copies to:
Harold H. Hoffman III, Esq.
VA General Counsel (027)

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