John W. Akins, Appellant, v. Edward J. Derwinski, 

 Secretary Of Veterans Affairs, Appellee 

 No. 89-115 

 UNITED STATES COURT OF VETERANS APPEALS 

 1991 U.S. Vet. App. LEXIS 32; 1 Vet. App. 228 

 

 August 27, 1990, Argued 

 April 23, 1991, Decided 

NOTICE: Pursuant to 38 U.S.C. § 4067(d) (1988), this decision will 

become the decision of the Court thirty days from the date hereof. 

SUBSEQUENT HISTORY: As Corrected May 22, 1991. As Amended June 3, 1991. 

PRIOR HISTORY: 

On Appeal from the Board of Veterans' Appeals. 

COUNSEL: Ronald L. Smith for appellant. 

 David W. Engel, with whom Raoul L. Carroll, General Counsel, and Andrew J. 

Mullen, then Acting Assistant General Counsel, were on the brief, for appellee.

JUDGES: Nebeker, Chief Judge, and Kramer and Ivers, Associate Judges. 

OPINIONBY: NEBEKER 

OPINION: Appellant, John W. Akins, appeals the Board of Veterans' Appeals (Board

or BVA) decision of September 18, 1989, which denied service connection for his

enucleated (surgically removed) right eye. On appeal before the Board, appellant

contended that the denial of his original claim for service connection, by 

rating decision dated July 26, 1946, was clear and unmistakable error. See 38 

C.F.R. § 3.105(a) (1990). Because the July 26, 1946, decision failed properly to

apply the relevant regulation to the prejudice of the substantive rights of 

appellant, we conclude that the 1946 decision contains clear and unmistakable 

error. The relevant regulation, Veterans Regulation 1(a), Part I, paragraphs 

I(b) and (d) (1943) presumed sound condition upon induction and service

aggravation of a preexisting condition if there was an increase in disability 

unless specific contrary findings are made. None were made in this case. 

Accordingly, we reverse the Board's September 18, 1989, decision which concluded

otherwise and remand the case for proceedings consistent with this opinion. 

 Appellant served in the United States Army from May 23, 1944, until May 26, 

1946. At the time of his induction physical, a cataract was noted in his right 

eye. Based upon information related by appellant, the notation consistently 

appears in his medical charts, "cataract, right eye, type undetermined, cause 

traumatic following an injury incurred while playing with a slingshot in 1933 

[age 8 or 9], striking his right eye." Despite the induction physical's finding

that appellant had no vision in his right eye, he was accepted for limited 

service. All other medical reports reflect, and appellant has testified, that he

had light perception in his right eye. 
 During a Department of Veterans Affairs (formerly Veterans' Administration) 

(VA) Regional Office hearing conducted on March 14, 1989, appellant related an 

incident wherein sand was blown into his right eye while he was on maneuvers

during basic training at Camp Wolters, Texas. He stated that he received 

treatment at a first aid station and was later hospitalized for three days in an

effort to reduce soreness and swelling which developed in the eye. He explained

that treatment included rinsing the eye with an unspecified solution and 

application of hot packs. There is, however, no record of this incident in 

appellant's service medical records. 

 According to appellant's testimony, his right eye continued to bother him 

over the next five weeks until he finished basic training. After finishing basic

training he was transferred to Fort Ord, California. During transit to Ford Ord

by train, appellant's right eye worsened and upon his arrival "flared up." After

arriving, he was admitted to the hospital at Fort Ord. 

 An ophthalmologic examination dated November 13, 1944, the day of appellant's

admission, diagnosed his condition as: 

 

1. Glaucoma, chronic, moderately severe, right eye, cause undetermined. 

 

2. Cataract, traumatic, right eye. 

 

3. Iritis, chronic, moderate, right, type and cause undetermined. Vision O.D.-LP

[right eye - light perception][.] 

 

4. Iritis, chronic, moderate, right, type and cause undetermined,

exacerbation of Vision O.D.-LP. 

 

R. at 54. 

 Fort Ord Hospital records reveal the course of treatment leading to 

enucleation of the right eye: 

 

Patient was admitted to Ward C-8 on 13 November 1944 and placed under myotics 

for observation and definitive treatment. Typhoid was given intravenously and 

adrenalin soaked cotton was placed in the cul-de-sac and the symptoms subsided 

somewhat. 

 

On 20 November 1944, multiple staining areas were present over the cornea. This

continued until 7 December 1944 when the cornea was free of staining areas. On 

14 December 1944, a sclerectomy was performed with an iris inclusion. Following

this operation, there was a temporary relief from pain, but the tension 

continued high and on 1 January 1945, the pain returned. The tension remained 

from 45 to 65 and the pain was continuous until 30 January 1945 when an 

enucleation was done. Post-operative reaction normal. 

 

R. at 57. 

 The final diagnosis was listed: 

 

1. Cataract, right eye, type undetermined, cause traumatic following an injury 

which was accidentally incurred while playing with a slingshot in 1933, striking

his right eye. 

 
2. Glaucoma, chronic, moderately severe, right eye, secondary to No. 

1. o.d. vision L.P. 

 

3. Iritis, chronic, moderate, right, type and cause undetermined, vision L.P. 

O.D. 

 

4. Iritis, acute exacerbation of, moderate, right, type and cause undetermined,

vision L.P. O.D. 

 

Id. (emphasis added). Appellant was discharged from the hospital on February 14,

1945. 

 Appellant's original application for VA benefits was submitted June 19, 1946.

The July 26, 1946, rating decision denied service-connected benefits and found 

that the surgical removal of appellant's right eye was a definitive treatment 

for glaucoma, a condition secondary to appellant's preexisting traumatic 

cataract. By letter dated October 27, 1988, appellant requested that the 

decision be reviewed and amended on the basis of clear and unmistakable error. 

The Regional Office reopened appellant's claim and "considered all prior 

evidence of record." R. at 216. 

 When appellant's claim was reopened, he argued that the presumption of 

soundness upon induction and the presumption that preexisting conditions are 

aggravated in service, if there was an increase in disability, demonstrated 

clear and unmistakable error. He sought, in effect, to demonstrate error in the

failure to apply the regulation which granted him a presumption of 

service connection. In this context, the Court notes that the factual predicate

demonstrated by the presumptions have an important evidentiary value and, to 

that extent, are the functional equivalent of evidence. Because it is clear that

this evidentiary presumption was not previously considered and because it bears

directly and substantially on the issue of entitlement to service connection, it

provides a basis for reopening the claim. 55 Fed. Reg. 52,273 (1990) (codified 

at 38 C.F.R. § 3.156(a)); see Smith v. Derwinski, U.S. Vet. App. No. 89-13, slip

op. at 4 (Mar. 15, 1991) citing Colvin v. Derwinski, U.S. Vet. App. No. 90-196,

slip op. at 4 (Mar. 8, 1991) (reopened claims may be subject to a de novo legal

determination by this Court whether the evidence submitted is "new and 

material"). 

 Despite having properly reopened appellant's claim, the Regional Office 

issued a rating decision confirming the 1946 decision which originally denied 

benefits. Appellant filed his Notice of Disagreement on November 19, 1988. After

exhausting administrative appeals, appellant noted a timely appeal in this 

Court. 

 On appeal appellant argues that the original 1946 rating decision 

should be reversed based on clear and unmistakable error. Having reopened his 

claim and having the former disposition reviewed, 38 U.S.C. § 3008 (1988), 

appellant could have chosen to argue that he should prevail because the evidence

preponderates in his favor or is at least in equipoise. 38 U.S.C. 3007(b) 

(1988); Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 7-8 (Oct. 

12, 1990). He has chosen instead to accept the burden of demonstrating clear and

unmistakable error, presumably to avoid the question whether his entitlement 

would only date back to the date of reopening, see 38 U.S.C. § 3010 (1988), 

rather than his benefits dating back to 1946 which is explicitly provided for in

38 C.F.R. § 3.105(a). 
 Section 3.105(a) provides: "Previous determinations on which an action was 

predicated, including decisions of service connection . . . will be accepted as

correct in the absence of clear and unmistakable error. Where evidence 

establishes such error, the prior decision will be reversed or amended." 

Appellant's argument is that application of the regulation granting him 

favorable presumptions, which may only be overcome by clear and 

unmistakable evidence, demonstrate clear and unmistakable error in the denial of

service connection for his enucleated right eye. Appellant further contends that

the evidence currently of record is not "clear and unmistakable" evidence and 

that it is, therefore, insufficient to rebut the presumptions. 

 We observe, for the sake of clarity, that the terms "clear and unmistakable 

evidence" and "clear and unmistakable error" represent two fundamentally 

different ideas. Despite the fact that "clear and unmistakable" describes both 

nouns, the concepts of "evidence" and "error," as used in this context, are 

separate and distinct. "Clear and unmistakable evidence" describes the burden of

proof, at a fact-finding level, necessary to overcome a presumption. "Clear and

unmistakable error," on the other hand, describes the legal test employed in 

reviewing a previous decision. Put definitionally, "clear and unmistakable 

evidence" describes the persuasiveness of evidence, while "clear and 

unmistakable error" requires that error, otherwise prejudicial, see 38 U.S.C. §

4061(b) (1988), must appear undebatably. 

 At the time of the 1946 rating decision, the regulation describing basic 

entitlement to benefits, the presumption of soundness at induction and 

the presumption of aggravation for a preexisting condition were found in 

Veterans Regulation 1(a), Part I, paragraphs I(a), (b) and (d) (1943). These 

paragraphs are currently codified at 38 U.S.C. § 310, § 311 and § 353 (1988), 

respectively, without substantive change. 

 Veterans Regulation 1(a), Part I, paragraph I(a) provided that benefits (a 

"pension") will be paid to persons suffering from disabilities "resulting from 

personal injury or disease contracted in line of duty, or for aggravation of a 

preexisting injury or disease contracted or suffered in line of duty." This 

provision was expressly relied on in the 1946 rating decision denying appellant

benefits. 

 In establishing his disability as either incurred in line of duty or as an 

aggravation of a preexisting injury or disease, appellant was entitled to 

favorable presumptions. Veterans Regulation 1(a), Part I, paragraph I(b), 

provided: 

 

For the purposes of paragraph I(a) [basic entitlement], every person employed in

the active military or naval services shall be taken to have been in sound 

condition when examined, accepted, and enrolled for service, except as to 

defects, infirmities, or disorders 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 active military or naval service. 

 

(Emphasis added). 

 Appellant's glaucoma was first diagnosed while he was in military service. 

Accordingly, he relies on the language of the regulation and argues that the 

Secretary must satisfy a two-part test to rebut the presumption of soundness. 
First, the Secretary must prove by clear and unmistakable evidence that glaucoma

existed prior to appellant's military induction. Second, if the Secretary can 

demonstrate that glaucoma existed prior to service, he must also prove by clear

and unmistakable evidence that the glaucoma was not aggravated in service. 

 More importantly, however, because the parties do not dispute that if the 

enucleation of appellant's right eye should be service connected, it results in

an increased disability, appellant also benefits from the application of 

Veterans Regulation 1(a), Part I, paragraph I(d), which provided: 

 

That for the purposes of paragraph I (a) hereof [basic entitlement] a 

preexisting injury or disease will be considered to have been aggravated by 

active military service as provided for therein where there is an increase in 

disability during active service unless there is a specific finding that the 

increase in disability is due to the natural progress of the disease. 

 

(Emphasis added). In short, a proper application of the relevant regulation, 

with its corresponding presumptions favoring service connection, places an 

onerous burden on the government to rebut the presumption of service connection.

It is undebatable that the 1946 rating decision did not consider paragraphs I(b)

and (d). It relied only on paragraph I(a) and did not address the need to rebut

the presumptive factual predicates necessary legitimately to deny service 

connection. 

 The language of the regulation dictated that once the presumption was in 

place, the burden shifted to the government to offer clear and unmistakable 

evidence to rebut the presumption of service connection. Additionally, in the 

case of aggravation of a preexisting condition, the government must point to a 

specific finding that the increase in disability was due to the natural 

progression of the disease. 

 Appellee, during oral argument, attempted to demonstrate that there 

was clear and unmistakable evidence sufficient to overcome the presumption and 

show that glaucoma existed prior to service. However, he also conceded that the

record does not contain a specific finding that 1) glaucoma, if it did exist 

prior to service, naturally leads to the enucleation of an eye, or 2) that 

glaucoma, if it was not a preexisting condition, naturally followed from the 

preexisting traumatic cataract. While it is true that there is evidence that 

appellant's glaucoma was secondary to the traumatic cataract, the record does 

not contain the specific findings required to establish natural progression of a

disease and thereby rebut the presumption of service aggravation. 

 This point is dispositive. It is exactly these specific findings which are 

critical but missing in determining whether service connection is warranted or 

not. If the natural progression of the traumatic cataract was glaucoma which in

turn led to the enucleation of appellant's right eye, service connection is not

warranted. If, however, the preexisting condition was aggravated in service, 

service connection is mandated. Neither the record nor the parties suggest that

either alternative is medically unlikely. The application of the 

regulation granting the presumption of service connection required that evidence

rebutting it be presented and be found to be "clear and unmistakable" to defeat

the presumption of service connection. Without this evidence, application of 

Veterans Regulation 1(a), Part I, paragraphs I(b) and (d) mandated the 

presumption of service connection. 
 In Bentley v. Derwinski, U.S. Vet. App. No. 89-70, slip op. at 6 (Sept. 13, 

1990), appeal dismissed for failure to prosecute, No. 91-7020 (Fed. Cir. Feb. 

22, 1991), this Court held that failure to observe the requirements of a 

regulation prejudicial to a veteran constitutes, as a matter of law, clear and 

unmistakable error. Such failure certainly is error here. Accordingly, we hold 

that the government's failure properly to apply the provisions of Veterans 

Regulation 1(a), Part I, paragraphs I(b) and (d) prejudiced the substantive 

rights of the veteran and constitutes clear and unmistakable error in the 1946 

rating decision denying service connection. We also necessarily hold, under 38 

U.S.C. § 4061(a)(3)(A) (1988), that the 1989 BVA decision which concluded 

otherwise is not in accordance with law. It is, therefore, reversed and 

the case is remanded. On remand, the Secretary is instructed to amend the 1946 

rating decision to award service connection and determine the appropriate 

disability rating for appellant taking into account the change brought about by

the enucleation of his right eye. In accordance with 38 C.F.R. § 3.105(a), "for

the purpose of authorizing benefits," the corrected rating decision must be 

given the same effect as if rendered July 26, 1946.