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Board Misapplied the Law Regarding Presumption of Soundness When Denying Veteran’s CUE Claim

May 1, 2019
Court Win - Service Connection cause of death

Factual and Procedural History

The Veteran served honorably in the United States Air Force from January 1977 to June 1980.  In April 1976, prior to service, the Veteran had a ruptured ectopic pregnancy in her right fallopian tube, which resulted in a right salpingectomy (i.e. removal of the fallopian tube).  She reported this procedure upon entry into service and a notation was made that she had no further complications.  On her entrance examination, all findings were normal, including a pelvic examination, and she was noted to be qualified for enlistment.  In February 1977, while in service, the Veteran had a left tubal ectopic pregnancy that resulted in a total abdominal hysterectomy, and left salpingectomy.  The Veteran initially filed a claim for service connection for residuals of a hysterectomy in May 1988.  Two months later, the Regional Office denied her claim, finding that this condition existed prior to service and that the surgery performed in service was remedial in nature and not due to service.  The Veteran did not appeal this decision, and it became final.

In May 2013, the Veteran filed a motion to reverse or revise the November 1988 decision on the grounds that it contained a clear and unmistakable error (CUE).  This motion was denied, and she then perfected an appeal to the Board of Veterans’ Appeals.

Board denies Veteran’s CUE claim

In January 2017, the Board issued a decision that (1) found no CUE in the November 1988 Rating Decision that denied service connection for a hysterectomy and (2) denied entitlement to special monthly compensation (SMC) for loss of use of a creative organ.  In its decision, the Board found that it was not clear error for the Regional Office to have found that the hysterectomy procedure was remedial in nature, based on the medical evidence of a preexisting condition.  The Board also found that the Veteran’s CUE assertions amounted to nothing more than a disagreement with how the Regional Office weighed the evidence of record at the time.  The following appeal ensued.

CCK appeals to CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied the Veteran’s CUE claim and entitlement to SMC for loss of use of a creative organ.  CCK argued, in part, that there was CUE in the November 1988 Rating Decision because the Regional Office failed to apply the presumption of soundness.  Specifically, the Veteran’s left tubal ectopic pregnancy and hysterectomy were not noted on entry into service, and thus, she was entitled to the presumption of soundness.  Therefore, the Board’s finding of no CUE was not in accordance with the law and should be reversed.  CCK further argued that the Board’s finding that it was debatable whether the Veteran’s condition preexisted service, which is fundamentally insufficient to rebut the presumption of soundness.

Court agrees with CCK’s arguments

On March 4, 2019, the Court issued a decision in accordance with CCK’s arguments.  The Court agreed the Board concluded that the Veteran’s condition was not noted on her entrance examination and therefore, the presumption of soundness attached.  The Court noted that despite this finding, the Board determined that it was not CUE for the Regional Office to conclude the condition preexisted service and her in-service hysterectomy was remedial.  Here, the Court held that the Board’s findings in that regard clearly misapplied the law as to the presumption of soundness as it relates to what the Regional Office did in its November 1988 Rating Decision.  In regards to the Board’s finding that it was debatable whether the Veteran’s condition preexisted service, the Court determined if the evidence was debatable, then the condition did not clearly and unmistakably preexist service.  Therefore, the Regional Office did not properly apply the law.  However, for the issue of entitlement to SMC for loss of use of a creative organ, the Court found that this issue was abandoned.

CCK files motion for reconsideration

CCK filed a timely motion for reconsideration for portions of the Court’s March 4, 2019 decision.  Specifically, the Court stated that CCK did not challenge the Board’s denial of SMC, which was incorrect.  Furthermore, despite the finding that the presumption of soundness was rebutted, the Court instructed that on remand the Board needed to consider that it was at most debatable whether the Veteran’s condition preexisted service.  Here, CCK pointed out that in reversing the Board’s finding regarding the presumption of soundness, the Court effectively determined that the condition didn’t preexist service, so there was no need for the Board to consider whether it preexisted.

Court issues second decision addressing CCK’s motion

On March 25, 2019, the Court issued the same decision but removed the problematic instruction to the Board.  The Court also remanded the issue of entitlement to SMC for loss of use of a creative organ as inextricably intertwined with the CUE issue.

 

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