UNITED STATES COURT OF VETERANS APPEALS

No. 94-1067

Earl E. Eddy, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Decided April 3, 1996 )

Gregory C. Burce was on the brief for the appellant.

Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General
Counsel; Adrienne Koerber, Deputy Assistant General Counsel; and Edward
V. Cassidy, Jr., were on the brief for the appellee.

Before NEBEKER, Chief Judge, and IVERS and STEINBERG, Judges.

STEINBERG, Judge: The appellant, World War II veteran Earl E. Eddy,
appeals a September 15, 1994, decision by the Board of Veterans\'
Appeals (BVA or Board) denying a claim based on his assertion of clear
and unmistakable error (CUE) in a September 19, 1946, Veterans\'
Administration (VA) (now Department of Veterans Affairs) regional office
(RO) decision. Record (R.) at 8. For the reasons that follow, the Court
will affirm the decision of the Board.

I. Background

The veteran served on active duty in the U.S. Army from May 1945 to
August 1946. R. at 82. His April 1945 induction medical examination
report indicated that his musculoskeletal system was normal. R. at 42.
He was hospitalized for back pain on May 18, 1946, at the 42nd General
Hospital in Japan, transferred to Letterman General Hospital in
California on July 5, 1946, and transferred to Mayo General Hospital on
July 10, 1946. R. at 36-37, 39, 101, 103-04. A May 20, 1946, \"History
of the Present Illness\" stated:

In 1942, \[the veteran\] was working on a grain wagon on a Wisconsin
farm and after lifting

some heavy grain bags he had onset of constant dull aching pains in the
lower back \-- he

has some pain all of the time on extensive walking or doing any heavy
work. Since coming

into the Army he has been able to do most duty \[without\] severe pain,
but since January he

has been driving a truck and he thinks his lower back has pained him
more severely and he is

unable to \[do\] duty \[without\] severe discomfort. He was x-rayed at
the 161st Station

Hospital in January but not hospitalized although several abnormalities
were found. He was

put on light duties but without relief of symptoms. Now comes to
hospital for complete

evaluation and disposition.

Imp. (1) Congenital abnormalities of vertebral column.

. . . .

Vertebral Column - Straight and \[without\] muscular spasm - moderate
tenderness

from \[illegible\] to lumbosacral joint - forward bending limited and
lateral flexion painful -

S\[traight\] L\[eg\] R\[aising\] tests negative. Vertebral rotation
negative.

Extremities - negative\[.\]

R. at 115-16. A May 21, 1946, x-ray report stated:

There is a rotoscoliosis of the lumbar spine with the convexity to the
right. There is asymmetry of the articular facets between L-4 and L-5
and there is some developmental variation from the normal of L-5 which I
believe is of no clinical significance. The intervertebral spaces appear
normal. The sacroiliac joint appears normal.

R. at 55. A June 3, 1946, clinical note stated: \"Soldier unimproved
during hospital stay - disposition Board saw soldier and \[illegible\]
him for transfer to the Zone of the Interior and further medical care.\"
R. at 56, 103.

A June 20, 1946, clinical record stated a diagnosis of: \"Malformation,
congenital - rotoscoliosis of the lumbar spine and asymmetry of the
articular facets between L4 and L5 manifested by low back pain, chronic,
moderate severe, and aggravated by military service.\" R. at 45. The
form also stated \"L\[ine\] O\[f\] D\[uty\]: Yes (EPTS-Aggravated)
Unimproved\". Ibid. A June 20, 1946, hospital record stated:
\"Diag\[nosis\]: Rotoscoliosis lumbar spine\[.\] Assymetry \[sic\],
articulating Facets spina bifida acculta \[sic\] 1st sacral L\[ine\]
O\[f\] D\[uty\] No E\[xisted\] P\[rior\] T\[o\] S\[ervice\]. R. at 46.
Handwritten below was the following notation: \"Diagnosis: (1)
Malformation, congenital \-- Rotoscoliosis of the lumbar spine and
asymmetry of the articular facets between L4 & L5 - manifested by low
back pain, chronic, moderate severe, and aggravated by military
service.\" Ibid. The block titled \"Line of Duty\" on the form had the
notation \"Yes (EPTS - aggravated)\".

An undated Mayo General Hospital record (apparently made on or about
July 12, 1946, given that it refers to \"admission\", and admission to
Mayo General Hospital was on July 12, 1946, see R. at 126-27), stated:

> Pertinent history, chief complaint, and condition on admission. In
> 1942, this patient appreciated the precipitous onset of constant dull
> aching pain in the low back while lifting heavy grain bags. Since that
> time he has had some degree of pain all the while, during extensive
> walking or heavy work. However, he has been able to tolerate his
> general Army duties without much personal distress. Since January 1946
> he has been driving a truck and has appreciated an aggravation of the
> severity of pain since that time, being unable to do duty without
> severe discomfort. Roentgenographic studies of the low back was
> \[sic\] done at the 151st Station Hospital at which time a
> rotoscoliosis of the lumbar spine with convexity to the right was
> found with associated asymmetry of the articular facet between L-4 and
> L-5 and also concomitant developmental variations from the normal of
> L-5. Light duty did not give relief of symptoms. 15 May 46 the patient
> states that a bench fell on his back and for approximately two weeks
> following this he appreciated \"numbness\" on the lateral aspect of
> the right thigh. There is no other associated hypesthesia or
> hyperthesia.
>
> PHYSICAL EXAMINATION IS NEGATIVE EXCEPT FOR mild degree of low
> sacrospinalis spasm bilaterally and tenderness over the spine of L-5.
>
> Impression: (1) Malformation, lumbar spine, congenital, with
> rotoscoliosis and asymmetry of the articular facet between L-4 and
> L-5, manifested by low back pain, chronic, moderately severe,
> aggravated by military service. (2) ? Herniation of intervertebral
> disc.
>
> Immediate Program: Refer to neurosurgery to \[sic\] re-evaluation of
> roentgenographic studies with check-up films of the lumbar spine.

R. at 51. This report was signed by \"Albert E. Posthuma\", who was
identified as a first lieutenant in the medical corps. Ibid. A July 19,
1946, x-ray report stated: \"Spine: There is a slight dextro-scoliosis
of the lumbar spine; L5 is transitional in type and is slightly
asymmetrical. There is a spina bifida occulta of S1.\" R. at 117.

An undated record, which refers to a July 12, 1946, admission to Mayo
General Hospital and gives a patient history very similar to that
reported in the July 12, 1946, record, stated:

> Physical findings: Negative except for mild degree of low
> sacrospinalis spasms, bilaterally, with tenderness over spine of L-5.
> There is also associated limitation of flexion and rotation of the
> lumbar spine. Patient was admitted to Mayo GH 12 July 1946.
>
> Clinical Course and Disposition: Check-up films of the lumbar spine
> have been taken for comparison with the previous films.
>
> Diagnosis: 1. Malformation, lumbar spine, congenital, with
> rotoscoliosis and asymmetry of the articular facet between L-4 and
> L-5.

2\. Low-back pain, chronic, moderately severe, aggravated by military
service.

R. at 59-60. The name and title \"A. E. POSTHUMA, 1st Lt., M\[edical\]
C\[orps\]\" appears at the bottom of the page. Ibid.

A July 18, 1946, \"Opinion of consultant\" by the Chief of Neurosurgery
stated:

> History and records reviewed. Patient dates the onset of
> symptomatology to 1942, at which time he strained his back while
> working on the farm and lifting wheat. Symptoms are not disabling but
> he continues to have intermittent low-back pain. Military service
> began in May 1945. He continued to have intermittent symptoms,
> increased by prolonged walking, vigorous exercises, lifting, and
> straining. His entire symptoms have been in the lower lumbar sacral
> region midline. Pain is of dull aching character and he, at no time,
> has had pain radiating into the gluteal region or lower extremities.
> In the first part of May, while stationed in Japan, a bench in which
> he was sitting turned over and the back struck him across the lower
> lumbar region, causing increase of pain. The following morning, he
> states that there was numbness of the entire right leg, beginning at
> the inguinal region, but no pain. No difficulty in walking or motor
> system and no difficulty on the left. In two weeks sensory symptoms
> had completely subsided. Sensory manifestations have not been
> localized but began at the level of the thigh mentioned. No sphincter
> difficulties. When patient was in the hospital and in ordinary
> activities, he has no symptoms whatever, but it is only when doing
> more strenuous activities as mentioned that back pain develops.

PHYSICAL EXAMINATION:

> He has perfect movement of the spine in all directions without
> complaint of pain. No abnormalities to palpation or percussion. No
> atrophies made out in the lower extremities. Cremasteric reflexes are
> active. Motor power is good and equal. Deep reflexes brisk and equal.
> Straight leg raising not painful. No abnormality of sensation can be
> detected.

IMPRESSION:

> I can find no evidence of any disease of the nervous system which is
> responsible for symptomatology. Neurosurgical clearance is given.

R. at 61. A July 26, 1946, \"Physical Profile Serial\" signed by
\"medical officer\" A. E. Posthuma listed \"Malformation lumbar spine,
congenital\" under \"Defects Which Require Special Consideration in
Assignment\"; \"nothing but very light duty\" under \"Individual is
Unfit for Following Types of Duty\"; \"permanent\" was checked under
\"Limitations Mentioned Above Are\"; and \"to be separated under
Circular \# 391\" was entered under Remarks\". R. at 30.

An August 8, 1946, clinical record noted: \"Malformation, lumbar spine,
congenital, with rotoscoliosis and asymetry \[sic\] of the articular
facet between L-4 and L-5, manifested by low back pain, chronic
moderately severe, E\[xisted\] P\[rior\] T\[o\] S\[ervice\], aggravated
by military service. (Transfer diagnosis concurred in.)\" R. at 29. An
August 8, 1946, hospital record signed by A. E. Posthuma reported a
\"final diagnosis\" of:

> 1\. Malformation, lumbar spine, congenital, with rotoscoliosis and
> asymmetry of the articular facet between L-4 and L-5

2\. Low back pain, chronic, moderately severe, aggravated by military
service.

R. at 25. The report noted that his \"condition on completion of case\"
was \"unimproved\". Ibid. An August 10, 1946, \"Disposition of Patient\"
card listed a diagnosis of \"1. Malformation, lumbar spine, congenital.
2. Low back pain, chronic, moderately severe.\" R. at 35. A block titled
\"Line of Duty\" was checked \"yes\", and \"aggravated by service\" was
typed in. Ibid. The veteran\'s August 10, 1946, separation medical
examination report indicated \"none\" for musculoskeletal defects, noted
an \"\[i\]njured back\" in May 1946, and indicated (by \"yes\" or \"no\"
answers) the following: That the injury did not exist prior to service;
was incurred in military service and in the line of duty; was a
\"present physical defect\"; was not aggravated in service; and would
not result in disability. R. at 141.

In August 1946, shortly after his separation from service, the veteran
applied to VA for disability compensation for a back condition. R. at
143. Following an initial September 5, 1946, denial based on incomplete
records, a September 19, 1946, VARO decision noted that \"\[a\]dditional
records \[were\] received and reviewed\" and concluded: \"BACK INJURY,
AGGRAVATED: Not found on last examination in service.\" R. at 24, 148,
150-51. A September 24, 1946, letter to the veteran from the RO stated
the RO\'s analysis:

> Kindly be informed that under date of September 19, 1946, all the
> evidence in your claims file including additional service records,
> recently received, was carefully considered by this office. It was the
> determination of the Rating Agency that no new findings were shown
> upon which to change your current rating. The disability diagnosed
> back injury, aggravated, was not found on last examination in service.
> The records indicate, however, that you received treatment for this
> condition while in service but that no residuals were noted at time of
> discharge. If you are of the opinion that you have a meritorious
> claim, you may submit evidence in support thereof.

R. at 154. A February 8, 1947, RO decision confirmed the denial. R. at
156.

In March 1991, the veteran filed with the RO a statement, with medical
records attached, requesting service connection for his back condition.
R. at 97. The records submitted were duplicates of the records received
by the RO in 1946 and 1947. R. at 98-136. The RO requested and received
private medical records of back treatment in 1978 (R. at 172), and the
veteran submitted a letter from a private doctor stating that he had
treated the veteran since 1979 for \"chronic intractable back pain with
recurring acute attacks\" (R. at 188). In May 1991, the RO refused to
reopen the claim because the service medical records had been previously
considered and the private medical records indicated treatment more than
30 years after service. R. at 179, 191.

The veteran appealed to the Board, and the September 15, 1994, BVA
decision here on appeal granted the claim for service connection of a
lower back disorder, effective as of the date of the reopened claim, and
denied a claim of CUE in the September 19, 1946, RO decision. The Board
stated that, although the veteran\'s back condition had worsened during
service, the increase in disability was temporary as shown by the July
1946 examination report. R. at 13. The Board acknowledged that the
September 19, 1946, RO decision had \"misstated the findings of back
defect at separation\", but concluded that \"had the error not been
made\" the outcome would not have been \"manifestly different\". Ibid.

II\. Analysis

Section 3.105(a) of title 38, Code of Federal Regulations, provides:

> Where evidence establishes \[CUE\], the prior decision will be
> reversed or amended. For the purpose of authorizing benefits, the
> rating or other adjudicative decision which constitutes a reversal of
> a prior decision on the grounds of \[CUE\] has the same effect as if
> the corrected decision had been made on the date of the reversed
> decision.

38 C.F.R. § 3.105(a) (1995). A claim of CUE is a collateral attack on a
final RO decision. See Smith (William) v. Brown, 35 F.3d 1516, 1521
(Fed. Cir. 1994); Duran v. Brown, 7 Vet.App. 216, 223-34 (1994).

In Russell v. Principi, the Court defined CUE as follows:

> Either the correct facts, as they were known at the time, were not
> before the adjudicator or the statutory or regulatory provisions
> extant at the time were incorrectly applied. . . . \[CUE\] is the sort
> of error which, had it not been made, would have manifestly changed
> the outcome . . . \[, an error that is\] undebatable, so that it can
> be said that reasonable minds could only conclude that the original
> decision was fatally flawed.

Russell, 3 Vet.App. 310, 313 (1992) (en banc). As to the \"statutory or
regulatory provisions extant\" in 1946, the law then applicable to a
claim of aggravation of an injury or disease in service was essentially
the same as it is now. Compare Vet. Reg. No. 1(a), Part I, para. I(d),
Ex. Ord. No. 6156 (June 6, 1933), with 38 U.S.C. § 1153; 38 C.F.R. §
3.306(a) (1995). Basically, it must be found that a preexisting injury
or disease, here the veteran\'s back condition, increased in disability
during active service and, if so, that condition is held to be
aggravated by service unless there is a specific finding that the
increase in disability was due to the natural progress of the disease.
Ibid; see Doran v. Brown, 6 Vet.App. 283, 286 (1994); Hunt v. Derwinski,
1 Vet.App. 292, 293 (1991).

For a claim of CUE to be reasonably raised, the claimant must provide
some degree of specificity as to what the alleged error is, and, unless
it is the kind of error that, if true, would be CUE on its face,
\"persuasive reasons must be given as to why the result would have been
manifestly different but for the alleged error\". Fugo v. Derwinski, 6
Vet.App. 40, 44 (1993). On appeal of a BVA determination that there was
no CUE in a prior final RO decision, the Court\'s review is limited to
determining whether the Board\'s conclusion is \"arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law\" (38
U.S.C. § 7261(a)(3)(A)) and whether it is supported by an adequate
statement of \"reasons or bases\" (38 U.S.C. § 7104(d)(1)). See Glynn v.
Brown, 6 Vet.App. 523, 530-31 (1994); Damrel v. Brown, 6 Vet.App. 242,
246 (1994); Russell, 3 Vet.App. at 315.

Most importantly in terms of the Court\'s decision in this case,
\"\[i\]n order for there to be a valid claim of \[CUE\], . . . \[t\]he
claimant, in short, must assert more than a disagreement as to how the
facts were weighed or evaluated.\" Russell, 3 Vet.App. at 313. \"A
determination that there was a \`\[CUE\]\' must be based on the record
and the law that existed at the time of the prior . . . decision.\" Id.
at 314; see also Luallen v. Brown, 8 Vet.App. 92, 95 (1995) (\"the
appellant is actually asserting disagreement with how the RO evaluated
the facts before it, an allegation which is inadequate to raise a CUE
claim\").

The veteran asserts CUE in the September 19, 1946, RO decision in that
there was a \"great array of medical reports and records . . . that
state explicitly that the veteran had a disorder of the back that was
\`aggravated by military service\'\", and \"no factual basis at all\" to
the contrary. Brief (Br.) at 9-10. He argues that the August 1946
separation medical examination report stated that his back injury had
been \"incurred in line of duty\"; thus, according to the veteran,
\"\[t\]he report of the separation exam contains an express indication
that the veteran sustained a back injury while in the service, and that
physical defects related to the injury were present at the time of the
examination\". Ibid. He asserts that the RO\'s interpretation of the
separation examination report as not showing aggravation of a back
injury was an \"obvious misreading\" and the rationale for its decision
was \"patently false\". Br. at 10.

Had the RO in 1946 indeed made a materially incorrect characterization
of the separation examination report (for example, by stating that the
report had not recorded an in-service injury), then there might have
been a viable CUE claim in this case if the appellant were also able to
demonstrate that correction of the error would \"manifestly\" have
changed the outcome, Fugo, supra. See Russell, 3 Vet.App. at 319 (facts
of appellant\'s case showed that RO had been \"undebatably incorrect\"
that \"service records do not indicate defective hearing while on active
duty\"). However, the appellant has made no such showing.

In essence, the appellant\'s position is that the RO misinterpreted the
evidence of record. The appellant has made a strong case that there was
another, perhaps more persuasive, view of the evidence that should have
led the RO to award service connection in 1946 for aggravation of a
preexisting back condition. However, any error by the RO in not making
such an award would not fit the Russell prescription for CUE: \[T\]hat
\"\[e\]ither the correct facts, as they were known at the time, were not
before the adjudicator or the statutory or regulatory provisions extant
at the time were incorrectly applied\". Russell, 3 Vet.App. at 313. The
appellant\'s position in this appeal amounts to no more than \"a
disagreement as to how the facts were weighed or evaluated\" (ibid.); no
matter how compelling, such a contention cannot form the basis for a
claim of CUE. See Luallen, supra. Hence, the Court cannot possibly
conclude that the Board\'s denial of the appellant\'s CUE claim was
\"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law\" under 38 U.S.C. § 7261(a)(3)(A). See Glynn, 6
Vet.App. at 531.

Nor is this a case where the RO denied the very existence of an
in-service medical report, as was the case in Russell, supra. See also
Glynn, supra (CUE not found where prior decision \"did not deny the
existence of an in-service injury\" but denied only that \"any injury
appellant may have sustained during service did not aggravate his
preexisting condition\"). Neither is it, as the appellant asserts, a
case where there was \"no factual basis\" for the RO\'s denial. Even if
this were a viable basis for a CUE claim, cf. Bentley v. Derwinski, 1
Vet.App. 28, 30-31 (1990) (undisputed facts of record at time of earlier
adjudication required CUE-based award of higher disability rating
retroactive to date of prior adjudication), the above discussion
illustrates that the appellant\'s assertion is incorrect.

The appellant also argues that the Board committed error in relying on
the neurosurgeon\'s July 18, 1946, examination report as providing an
adequate basis for the RO\'s September 1946 decision when the RO itself
never had considered that report. However, the mere fact that the RO did
not discuss that report in its decision or followup letter to the
veteran does not make manifest that it did not consider it. Not until
February 1990 were ROs required to include in their decisions \"a
summary of the evidence considered\". 38 U.S.C. § 5104(b); see
Veterans\' Benefits Amendments of 1989, Pub. L. No. 101-237, § 115, 103
Stat. 2062, 2066 (1989). Hence, silence in a final RO decision made
before February 1990 cannot be taken as showing a failure to consider
evidence of record.

Finally, the appellant argues that the case should be remanded to the
Board because its statement of reasons or bases for its denial of CUE
was not adequate under 38 U.S.C. § 7104(d)(1). See Simon v. Derwinski, 2
Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188
(1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with
this statutory requirement, the Board must analyze the credibility and
probative value of the evidence, account for the evidence which it finds
to be persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence favorable to the veteran. See Caluza
v. Brown, 7 Vet.App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet.App.
36, 39-40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992);
Gilbert, supra. There was indeed much evidence that the veteran\'s
preexisting back condition was aggravated during the time when the
veteran was hospitalized in service (see R. at 25, 29, 35, 45, 51, 59,
113), and the Board did indeed fail to discuss, let alone analyze, much
of it. However, as concluded above, the appellant\'s claim is basically
a simple disagreement with how the RO weighed the evidence and, thus,
any inadequacy in the Board\'s statement of the reasons or bases for its
decision on that claim would be nonprejudicial error because a CUE claim
could not have been granted on any of the theories advanced by the
appellant. See Edenfield v. Brown, 8 Vet.App. 384, 390 (1995) (en banc)
(where Board mistakenly concludes that claim that is not well grounded
was well grounded and proceeds to deny claim on merits, such denial is
not prejudicial to appellant and is affirmed on appeal to this Court).

III\. Conclusion

Upon consideration of the record and the briefs of the parties, the
Court holds that the appellant has not demonstrated that the BVA
committed error \-- in its findings of fact, conclusions of law,
procedural processes, or articulation of reasons or bases \-- that would
warrant remand or reversal under 38 C.F.R. § 3.105(a) and the analysis
in Gilbert, supra. Therefore, the Court affirms the September 15, 1994,
BVA decision.

AFFIRMED.