Veteranclaims’s Blog

November 12, 2021

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.'” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1630
GILBERT SANCHEZ, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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, Gilbert Sanchez, appeals an April 1, 2016, decision of
the Board of Veterans’ Appeals (Board) that determined there was no clear and unmistakable error
(CUE) in a July 1981 VA regional office (RO) decision denying disability compensation benefits
for retinitis pigmentosa (RP). Record (R.) at 2-18. This appeal is timely and the Court has
jurisdiction over the matter on appeal 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 reasons
that follow, the Court will vacate the April 1, 2016, Board decision and remand the matter to the
Board for further proceedings.
I. BACKGROUND
The appellant had active duty in the U.S. Army from November 1977 to November 1980.
R. at 2586. His entrance medical examination and medical history reports indicate he was in good
health and do not mention eye problems. R. at 79-80. In August 1978, the appellant was seen at an
ophthalmology clinic with complaints of increasing difficulty seeing at night and decreased
peripheral vision in both eyes. At an eye examination in September 1978, the appellant reported
2
that he had been having difficulty seeing at night for the past 1 to 2 years. R. at 56. After an
examination, he was given a provisional diagnosis of RP. Id.
The appellant was recommended for a medical evaluation board (MEB). A March 1979
eye examination revealed narrow arterioles in the periphery with scattered pigmentary clumping
in the midperiphery of both eyes. R. at 57. The visual fields revealed “marked” concentric
narrowing of both fields. Id. The examiner stated that the patient has evidence of “advancing [RP]
which essentially[] has given him a severe bilateral concentric field loss to within 5 [degrees] of
fixation, and no evidence of dark adaptation.” R. at 59. The diagnosis was congenital RP. Id. The
examiner concluded that the appellant did not meet retention standards and recommended that he
be discharged because of a “preexisting condition[,] which is not considered to be service
aggravated.” Id. A March 1979 MEB report indicates with an “X” that the appellant’s RP existed
prior to entry on active duty and was not aggravated by active duty. Id.
In April 1980, the appellant filed a claim for disability compensation benefits for RP. R. at
2595-98. In July 1981, the RO denied the claim after concluding that the appellant’s RP “existed
prior to induction into active military duty without significant aggravation noted” during active
service R. at 2546.
In August 2013, the appellant asserted that the July 1981 RO decision contained CUE
because the RO failed to overcome either prong of the statutory presumption of soundness when
it concluded that his condition existed prior to entry to active duty and was not aggravated therein.
R. at 1337-39. In February 2014, the RO denied the appellant’s CUE request. R. at 1288-92. The
appellant appealed the RO decision to the Board. R. at 151-53, 177-97, 1127.
On April 1, 2016, the Board issued the decision now on appeal. R. at 2-18.
I. ANALYSIS
Revision of a final decision based on CUE is an exception to the rule of finality; when the
evidence establishes CUE in a final RO decision, CUE is grounds to reverse or revise the decision.
See 38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet.App. 52, 54-58 (2006); 38 C.F.R.
§ 3.105(a) (2017). CUE is established when all the following conditions have been met: (1) Either
the correct facts were not before the adjudicator or the statutory or regulatory provisions extant at
the time were incorrectly applied; (2) the alleged error is “undebatable,” not merely a
“disagreement as to how the facts were weighed or evaluated”; and (3) the error “manifestly
3
changed the outcome” of the prior decision. King v. Shinseki, 26 Vet.App. 433, 439 (2014);
Damrel v. Brown, 6 Vet.App. 242, 245 (1994); see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.
Cir. 1999) (expressly adopting the “manifestly changed outcome” standard). The Court’s review
of a Board decision finding no CUE in a prior, final RO or Board decision is limited to determining
whether the Board’s finding was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 38 U.S.C. § 7261(a)(3)(A). See Russell v. Principi, 3 Vet.App. 310, 315
(1992) (en banc); see also King, 26 Vet.App. at 439. As part of that review, however, the Court
reviews de novo whether an applicable law or regulation was applied. Joyce v. Nicholson, 19
Vet.App. 36, 42-43 (2005). The Court also reviews whether the Board’s decision is supported by
an adequate statement of reasons or bases. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
At the time of the July 1981 RO decision, 38 U.S.C. § 310 (now codified at 38 U.S.C.
§ 1110), provided generally that compensation was available for “disability resulting from
personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.” Additionally, the law provided a
“presumption of soundness,” in that “every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service,” except where a defect or disorder is “noted at
the time of examination, acceptance, and enrollment” or where “clear and unmistakable evidence
demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” 38 U.S.C. § 311 (now codified at 38 U.S.C. § 1111). Significantly, the rebuttal language in section 311 in 1981 was identical to that today in section 1111. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
In this case, the Board determined that the 1981 RO decision did not contain CUE. R. at

  1. The Board conceded that the appellant was entitled to the presumption of soundness because
    no eye abnormality was noted on his entrance examination; however, the Board stated that the law,
    at that time, did not require the RO to rebut both prongs of the presumption of soundness. Instead,
    the Board reasoned that the “recent interpretation” of the law expressed in Wagner was not
    applicable because it did not exist at the time of the July 1981 RO decision. Having rejected the
    appellant’s argument that the RO had the burden in 1981 to prove that both prongs of the
    presumption of soundness were rebutted, the Board found that the evidence in 1981 “indicates that
    4
    it is at least ‘debatable’ that the appellant’s RP preexisted service and was not aggravated therein.”
    R. at 18.
    The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an
    authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011)
    (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.'” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not
    question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.

    Because the Board gave an inadequate statement of reasons or bases for its decision, the
    Court will remand the appellant’s CUE request to the Board. On remand, the Board may use the
    correct standard articulated in Wagner to determine whether the RO in 1981 rebutted the
    presumption of soundness by relying on clear and unmistakable evidence that the appellant’s RP
    both preexisted service and was not aggravated by service. The Court reminds the Board that “clear
    and unmistakable evidence” is an onerous standard that means that the evidence in 1981 was
    “undebatable” that the appellant’s RP both preexisted service and was not aggravated by service.
    Horn v. Shinseki, 25 Vet.App. 234-35; see R. at 18 (Board decision stating that the evidence in
    1981″indicates that it is at least ‘debatable’ that the appellant’s RP preexisted service and was not
    aggravated” during service).
    5
    III. CONCLUSION
    After consideration of the appellant’s and the Secretary’s briefs, and a review of the record,
    the April 1, 2016, Board decision denying the appellant’s CUE request is VACATED and the
    matter is REMANDED for further proceedings.
    DATED: September 8, 2017
    Copies to:
    Robert V. Chisholm, Esq.
    VA General Counsel (027)

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