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)." ================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-1523 ChastainCE_10-1523.pdf Search Terms: MASSIE CreationDate: 03/28/2012 15:56:54 Creator: PrintServer150 ModDate: 04/10/2012 15:21:17 Producer: Corel PDF Engine Version 15.0.0.512 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- 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