DEGENERATIVE JOINT DISEASE CERVICAL SPINE

S. SORATHIA · 2025 · Case ID: A25046435

DENIED

Summary

The veteran, who served in the U.S. Army from February 1979 to October 1998, appeals the denial of his claims of Clear and Unmistakable Error (CUE) in prior rating decisions. The veteran sought to reopen claims related to his cervical spine, left knee, right knee, lumbosacral strain, and depression. The Board reviewed the October 28, 1999, rating decision, which granted service connection for cervical spine and left knee disabilities at 10% each, and denied service connection for a right knee disability. The Board also reviewed the March 31, 2000, rating decision, which granted service connection for lumbosacral strain and depression at 10% each. The veteran argued that the original decisions committed CUE by misinterpreting evidence, misapplying regulations (specifically 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, 4.59, 4.49, 4.126(a), and 38 U.S.C. § 1154(a)), failing to address flare-ups, not ordering neurological examinations, not inferring secondary conditions, and not giving lay statements sufficient weight. The Board found that the veteran's arguments primarily constituted disagreements with how the evidence was weighed, which does not meet the stringent definition of CUE. The Board noted that the original decisions were based on the evidence available at the time and followed applicable law and regulations. The Board also addressed the veteran's specific contentions regarding the presumption of soundness, the adequacy of examinations, and the consideration of flare-ups, finding no CUE. The Board concluded that the original decisions were not the product of CUE and that the evidence persuasively weighed against the veteran's claims, thus the benefit of the doubt rule did not apply. All claims of CUE were denied.

Rationale

AOJ properly considered relevant evidence and law.; Veteran's arguments reflect disagreement with evidence weighing, not CUE.; No CUE found in application of 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, 4.59.; No CUE in not addressing flare-ups or adjudicating secondary conditions.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230308-330323

Full Decision Text

Citation Nr: A25046435
Decision Date: 05/23/25 Archive Date: 05/23/25

DOCKET NO. 230308-330323
DATE: May 23, 2025

ORDER

The October 28, 1999, rating decision, which granted, in pertinent part, a claim of service connection for a cervical spine disability and assigned a 10 percent rating effective November 1, 1998, was not the product of clear and unmistakable error (CUE).

The October 28, 1999, rating decision, which granted, in pertinent part, a claim of service connection for a left knee disability and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE.

The October 28, 1999, rating decision, which denied, in pertinent part, a claim of service connection for a right knee disability, was not the product of CUE.

The March 31, 2000, rating decision, which granted, in pertinent part, a claim of service connection for lumbosacral strain and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE.

The March 31, 2000, rating decision, which granted, in pertinent part, a claim of service connection for depression and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE.

FINDINGS OF FACT

1. The Veteran included his original claims of service connection for a cervical spine disability, a left knee disability, a right knee disability, lumbosacral strain, and for depression in statements on a VA Form 21-526, "Veteran's Application For Compensation Or Pension," dated on June 19, 1998.

2. On pre-discharge VA examination in June 1998, the Veteran was diagnosed as having a cervical spine disability, a left knee disability, a lumbosacral spine disability, and depression which were related to active service and manifested by an inability to move his chin to his shoulder, a decrease of 10 degrees of neck motion on each side with movement towards each shoulder, left knee edema and tenderness to the inferior patellar area, a full range of left knee motion, degenerative disc disease of the lumbosacral spine at L5 S1 on x-rays, degenerative disc disease of the cervical spine at C5 C6, and stress-related insomnia; these findings support assigning separate 10 percent ratings effective November 1, 1998, for service-connected cervical spine disability, left knee disability, lumbosacral spine disability, and depression.

3. In a rating decision dated on October 28, 1999, and issued to the Veteran on November 22, 1999, the Agency of Original Jurisdiction (AOJ) granted, in pertinent part, claims of service connection for a cervical spine disability (characterized as degenerative joint disease cervical spine) and for a left knee disability (characterized as left knee injury, partial lateral meniscectomy), assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability (characterized as right knee condition); this decision was not appealed and became final.

4. In a rating decision dated on March 31, 2000, and issued to the Veteran on April 4, 2000, the AOJ granted, in pertinent part, claims of service connection for lumbosacral strain and for depression, assigning separate 10 percent ratings effective November 1, 1998; this decision was not appealed with respect to the service-connected lumbosacral strain and became final with respect to this claim.

5. The Veteran disagreed, in pertinent part, with the March 31, 2000, rating decision in a letter dated on August 27, 2000, and date-stamped as received by the AOJ on August 31, 2000, and requested a disability rating greater than 10 percent for his service-connected depression.

6. The AOJ promulgated a Statement Of the Case (SOC) which included the issue of entitlement to a disability rating greater than 10 percent for depression and mailed it to the Veteran on April 3, 2001; because he did not perfect a timely appeal, the March 31, 2000, rating decision became final with respect to this claim.

7. The Veteran filed a claim of CUE in the March 31, 2000, rating decision with respect to the award of service connection and a 10 percent rating effective November 1, 1998, for depression in a letter dated on January 24, 2022,
rating greater than 10 percent for his service-connected depression.

7. The Veteran filed a claim of CUE in the March 31, 2000, rating decision with respect to the award of service connection and a 10 percent rating effective November 1, 1998, for depression in a letter dated on January 24, 2022, and date-stamped as received electronically by VA that same day.

8. In a letter dated on July 14, 2022, and date-stamped as received electronically by VA that same day, the Veteran filed claims of CUE in the October 28, 1999, rating decision which granted, in pertinent part, claims of service connection for a cervical spine disability and for a left knee disability, assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability, and in the March 31, 2000, rating decision which granted, in pertinent part, a claim of service connection for lumbosacral strain, assigning a 10 percent rating effective November 1, 1998.

9. The AOJ denied all of the Veteran's CUE claims in the currently appealed AMA rating decision dated on March 3, 2023, and issued to him on March 6, 2023.

10. The Veteran disagreed with the denial of all of his CUE claims in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on March 8, 2023, and date-stamped as received electronically by VA that same day.

11. Statements regarding the Veteran's entitlement to disability ratings greater than 10 percent effective November 1, 1998, for service-connected cervical spine disability and service-connected left knee disability and entitlement to service connection and a 10 percent rating effective November 1, 1998, for a right knee disability based on CUE constitute disagreement with how the AOJ weighed the evidence in the October 28, 1999, rating decision.

12. Statements concerning the Veteran's entitlement to disability ratings greater than 10 percent effective November 1, 1998, for service-connected lumbosacral strain and service-connected depression based on CUE constitute disagreement with how the AOJ weighed the evidence in the March 31, 2000, rating decision.

CONCLUSIONS OF LAW

1. The October 28, 1999, rating decision, which granted, in pertinent part, service connection for a cervical spine disability and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105.

2. The October 28, 1999, rating decision, which granted, in pertinent part, service connection for a left knee disability and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105.

3. The October 28, 1999, rating decision, which denied, in pertinent part, a claim of service connection for a right knee disability, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105.

4. The March 31, 2000, rating decision, which granted, in pertinent part, a claim of service connection for lumbosacral strain and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105.

5. The March 31, 2000, rating decision, which granted, in pertinent part, a claim of service connection for depression and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3
, a claim of service connection for lumbosacral strain and assigned a 10 percent rating effective November 1, 1998, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Army service from February 1979 to October 1998. His medals include the Legion Of Merit.

The rating decision on appeal was issued in March 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Later that same month, in the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board only may consider the evidence of record at the time of the March 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims listed above, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, then he may file a Supplemental Claim (VA Form 20 0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record, to include entitlement to an additional disability rating, an extraschedular rating for a service-connected disability, service connection for another disability as secondary to a service-connected disability, or to a total disability rating based on individual unemployability (TDIU). See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017).

1. Whether the October 28, 1999, rating decision, which granted, in pertinent part, service connection for a cervical spine disability and for a left knee disability, assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability was the product of CUE

The Board is not persuaded that the October 28, 1999, rating decision, which granted, in pertinent part, service connection for a cervical spine disability and for a left knee disability, assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability was the product of CUE. The Veteran essentially contends that the AOJ committed CUE in the October 1999 rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. He specifically contends that the AOJ misapplied 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, and 4.59 in granting service connection and assigning a 10 percent rating effective November 1, 1998, for a left knee disability and denying service connection for a right knee disability in the October 1999 rating decision. He next contends that the AOJ committed CUE by misapplying or failing to apply the presumption of soundness in denying service connection for a right knee disability in the October 1999 rating decision. He further contends that the AOJ committed CUE by not addressing flare-ups of pain in his knees and cervical spine in the October 1999 rating decision. He next contends that the AOJ committed CUE by
4.40, 4.42, 4.45, and 4.59 in granting service connection and assigning a 10 percent rating effective November 1, 1998, for a left knee disability and denying service connection for a right knee disability in the October 1999 rating decision. He next contends that the AOJ committed CUE by misapplying or failing to apply the presumption of soundness in denying service connection for a right knee disability in the October 1999 rating decision. He further contends that the AOJ committed CUE by not addressing flare-ups of pain in his knees and cervical spine in the October 1999 rating decision. He next contends that the AOJ committed CUE by not adjudicating separate service connection claims for disabilities secondary to the service-connected cervical spine disability in the October 1999 rating decision. He finally contends that, but for AOJ error in the October 1999 rating decision, he is entitled to disability ratings greater than 10 percent effective November 1, 1998, for service-connected cervical spine disability and service-connected left knee disability and to service connection and a 10 percent rating effective November 1, 1998 for a right knee disability.

The Board finds, however, that the AOJ properly considered the relevant evidence (VA examination conducted in June 1998 as part of the Veteran's discharge processing at service separation) and governing law and regulations when it granted service connection and assigned separate 10 percent ratings effective November 1, 1998, for a cervical spine disability and for a left knee disability and also denied service connection for a right knee disability in the October 28, 1999 rating decision. The arguments presented by the Veteran essentially disagree with how the AOJ weighed the record evidence in the October 28, 1999, rating decision which can never rise to the level of a valid CUE claim.

The Veteran included his original claims of service connection for a cervical spine disability (which he characterized as periodic neck pain) and for bilateral knee disabilities (which he characterized as chronic bilateral knee pain) in statements on a VA Form 21-526, "Veteran's Application For Compensation Or Pension," dated on June 19, 1998. He asserted that his periodic neck pain stemmed from in-service motor vehicle accidents which occurred in February 1977 and in June 1984. He also asserted that his bilateral knee pain came "from running in boots the first 7 years of active duty" and experienced "pain in both knees when I jog."

In a rating decision dated on October 28, 1999, and issued to the Veteran on November 22, 1999, the AOJ granted, in pertinent part, claims of service connection for a cervical spine disability (characterized as degenerative joint disease cervical spine) and for a left knee disability (characterized as left knee injury, partial lateral meniscectomy), assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability (characterized as right knee condition). The AOJ stated that November 1, 1998, was the appropriate effective date for the award of service connection and separate 10 percent ratings for a cervical spine disability and for a left knee disability because that was the day after the date of the Veteran's discharge from active service. The AOJ essentially concluded that 10 percent ratings were warranted for each of these service-connected disabilities based on a pre-discharge VA examination which showed that he was diagnosed as having a cervical spine disability and a left knee disability which were related to active service and manifested by an inability to move his chin to his shoulder, a decrease of 10 degrees of neck motion on each side with movement towards each shoulder, left knee edema and tenderness to the inferior patellar area, a full range of left knee motion, and degenerative disc disease of the cervical spine at C5 C6. The AOJ also essentially concluded that service connection was not warranted for a right knee disability because there was no evidence of a current diagnosis which could be attributed to active service. This decision was not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran also did not submit any relevant evidence or argument within 1 year of the October 1999 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011).

In a letter dated on July 14, 2022, and date-stamped as received electronically by VA that same day, the Veteran filed a claim of CUE in the October 28, 1999, rating decision which
. This decision was not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran also did not submit any relevant evidence or argument within 1 year of the October 1999 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011).

In a letter dated on July 14, 2022, and date-stamped as received electronically by VA that same day, the Veteran filed a claim of CUE in the October 28, 1999, rating decision which granted, in pertinent part, claims of service connection for a cervical spine disability and for a left knee disability, assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability. He asserted that the AOJ committed CUE in the October 1999 rating decision by not considering his complaints of and treatment for right knee varus deformity as evidence of in-service incurrence of a right knee disability. He next asserted that the AOJ committed CUE in the October 1999 rating decision by misapplying 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, & 4.59 when it granted service connection for a left knee disability and denied service connection for a right knee disability. He further asserted that the AOJ committed CUE by not addressing flare-ups of bilateral knee and cervical spine pain and by not affording his lay statements concerning in-service incurrence of a right knee disability sufficient probative weight. He concluded that, but for AOJ CUE in the October 1999 rating decision, he was entitled to a disability rating greater than 10 percent for service-connected left knee disability and to service connection and a 10 percent rating effective November 1, 1998, for a right knee disability. With respect to the award of service connection and a 10 percent rating for a cervical spine disability, the Veteran asserted that the AOJ committed CUE in the October 1999 rating decision by not providing him with a neurologic examination. He also asserted that the AOJ committed CUE in the October 1999 rating decision when it did not infer and adjudicate separate service connection claims for disabilities secondary to service-connected cervical spine disability.

The AOJ denied, in pertinent part, the Veteran's claims of CUE in the October 28, 1999, rating decision which granted, in pertinent part, claims of service connection for a cervical spine disability and for a left knee disability, assigning separate 10 percent ratings effective November 1, 1998, and denied a claim of service connection for a right knee disability, in the currently appealed AMA rating decision dated on March 3, 2023, and issued to him and his former service representative on March 6, 2023. With respect to the service-connected cervical spine disability, the AOJ essentially concluded that there was no CUE in the October 1999 rating decision because the extant record evidence showed "no evidence of flare-ups and there was no indication of neurological complications at [that] time due to your cervical spine." The AOJ also concluded, "There is no evidence [that] VA omitted treatment records regarding conditions secondary to your service connected cervical spine degenerative joint disease" in the October 1999 rating decision. The AOJ further concluded that a 10 percent rating for service-connected cervical spine disability was appropriate due to "slightly limited motion of the cervical spine" seen in the extant record evidence. With respect to the service-connected left knee disability, the AOJ found that there was no CUE in the October 1999 rating decision because it considered flare-ups of left knee pain at that time "as part of the whole disability picture." The AOJ noted that consideration of flare-ups was not required when evaluating musculoskeletal disabilities until August 2011. The AOJ next noted that the Veteran's left knee range of motion and strength were normal at the time of the October 1999 rating decision and a 10 percent rating was assigned for service-connected left knee disability based on examination findings of slight edema with tenderness in the inferior patellar area. With respect to the denial of service connection for a right knee disability, the AOJ essentially concluded that there was no CUE in the October 1999 rating decision because there was no diagnosis of a right knee disability at the pre-discharge examination in June 1998. The AOJ stated, "Varus deformity is considered a congenital defect and generally not subject to service connection under 38 CFR
2011. The AOJ next noted that the Veteran's left knee range of motion and strength were normal at the time of the October 1999 rating decision and a 10 percent rating was assigned for service-connected left knee disability based on examination findings of slight edema with tenderness in the inferior patellar area. With respect to the denial of service connection for a right knee disability, the AOJ essentially concluded that there was no CUE in the October 1999 rating decision because there was no diagnosis of a right knee disability at the pre-discharge examination in June 1998. The AOJ stated, "Varus deformity is considered a congenital defect and generally not subject to service connection under 38 CFR 3.303(c). Varus deformity did not first become manifest during service nor did the evidence show it became aggravated by your military service." The AOJ finally concluded that it appropriately considered and applied 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, and 4.59 in the October 1999 rating decision and stated:

Under 38 C.F.R. § 4.59, painful motion warrants a compensable evaluation when there is a diagnosed condition that is related to service. In the absence of a diagnosed condition, pain alone can be considered service connected when it is related to military service and the pain must result in functional impairment of earning capacity to constitute a disability. Functional impairment of earning capacity must be demonstrated by credible medical and/or lay evidence....38 C.F.R. §§ 4.40 and 4.45 relate to how a condition is evaluated and not to whether or not the condition is service connected. Since service connection is not warranted for a right knee condition, these regulations do not apply. There is no evidence in equipoise where VA would need to make a reasonable doubt determination under 38 C.F.R. § 4.3.

The Veteran disagreed with the denial of his CUE claims in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on March 8, 2023, and date-stamped as received electronically by VA that same day. In a letter attached to his VA Form 10182, the Veteran asserted that the AOJ committed CUE in the October 1999 rating decision when it failed to apply or misapplied the presumption of soundness to his service connection claim for a right knee disability. He next asserted that the AOJ committed CUE in the October 1999 rating decision by not addressing flare-ups of pain in his knees and cervical spine. He also cited 38 U.S.C. § 1154 as support for his CUE claims.

The Board notes that previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). To establish a valid CUE claim, a Veteran must show that either the correct facts, as they were known at the time, were not before the adjudicator or that the statutory or regulatory provisions extant at the time were applied incorrectly. Russell v. Principi, 3 Vet. App. 310 (1992). The Court has stressed consistently the rigorous nature of the concept of CUE. CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors are errors that are undebatable so that it can be said that reasonable minds could conclude only that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313-4. It must be remembered that CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

The Court has propounded a three-prong test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. Allegations that previous adjudications had weighed and evaluated the evidence improperly also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43 44.

An AOJ's failure to address an implied claim is an action that can be challenged through a CUE motion. Deshotel v. Nicholson,?457 F.3d 1258?(Fed. Cir. 2006); Richardson v. Nicholson, 20?Vet. App.?64?(2006). When presented with such a request, VA first must give a full and sympathetic reading to the claimant's prior submissions to determine whether such a claim was reasonably raised. Roberson v. Principi,?251 F.3d 1378?(Fed. Cir. 2001); Szemraj v. Principi,?357 F.3d 1370?(Fed. Cir. 2004). If it is determined that a claim was reasonably raised, then VA must determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, that claim still must be adjudicated. If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE. Richardson,?20?Vet. App.?64.

The Board again notes that CUE is a very specific and rare kind of error and a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Fugo, 6 Vet. App. at 43 44.; see also Luallen, 8 Vet. App. at 96. In challenging the award of service connection and separate 10 percent ratings effective November 1, 1998, for a cervical spine disability and for a left knee disability and the denial of service connection for a right knee disability in the October 28, 1999, rating decision, the Veteran contends that the AOJ committed CUE in that rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. He specifically contends that the AOJ misapplied 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, and 4.59 in granting service connection and assigning separate 10 percent ratings effective November 1, 1998, for a left knee disability and for a cervical spine disability and denying service connection for a right knee disability in the October 1999 rating decision. He next contends the AOJ committed CUE by misapplying or failing to apply the presumption of soundness in denying service connection for a right knee disability in the October 199
that rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. He specifically contends that the AOJ misapplied 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, and 4.59 in granting service connection and assigning separate 10 percent ratings effective November 1, 1998, for a left knee disability and for a cervical spine disability and denying service connection for a right knee disability in the October 1999 rating decision. He next contends the AOJ committed CUE by misapplying or failing to apply the presumption of soundness in denying service connection for a right knee disability in the October 1999 rating decision. He further contends that the AOJ committed CUE by not addressing flare-ups of pain in his knees and cervical spine in the October 1999 rating decision. He also further contends that the AOJ committed CUE by not adjudicating separate service connection claims for disabilities secondary to the service-connected cervical spine disability in the October 1999 rating decision. He finally contends that, but for AOJ error in the October 1999 rating decision, he is entitled to service connection and a 10 percent rating effective November 1, 1998, for a right knee disability and to disability ratings greater than 10 percent effective November 1, 1998, for service-connected cervical spine disability and service-connected left knee disability. None of these arguments rise to the level of a valid CUE claim.

With respect to the argument that the AOJ committed CUE in the October 28, 1999, rating decision by misinterpreting the extant record evidence and misapplying the law and regulations, to include 38 C.F.R. §§ 4.3, 4.40, 4.42, 4.45, and 4.59, the Board notes initially that this reflects disagreement with how VA weighed the evidence. Such argument never rises to the level of a valid CUE claim. In the July 2022 CUE motion, the Veteran made the following allegations of CUE in the October 1999 rating decision: (1) the AOJ misapplied 38 C.F.R. § 4.3 because it did not resolve reasonable doubt in his favor and award service connection and a 10 percent rating effective November 1, 1998, for a right knee disability; (2) the AOJ misapplied 38 C.F.R. § 4.40 by not assigning more probative value to his lay testimony regarding bilateral knee and cervical spine pain, including flare-ups; (3) the AOJ misapplied 38 C.F.R. § 4.42 by relying on an inadequate examination; (4) the AOJ did not follow 38 C.F.R. § 4.45 when it evaluated his bilateral knees and cervical spine; and (5) the AOJ misapplied 38 C.F.R. § 4.59 by not assigning a minimum compensable rating based on painful motion of his right knee. In a March 2023 submission attached to his VA Form 10182, the Veteran made the following additional allegations of CUE in the October 1999 rating decision: (1) the AOJ violated "38 C.F.R. § 4.49...[and] misstates the actual content and meaning of 4.49"; (2) the AOJ failed to apply or misapplied the presumption of soundness when it did not award service connection for right knee varus deformity; and (3) the AOJ failed to apply 38 U.S.C. § 1154(a) by not considering all of the extant medical and lay evidence in the October 1999 rating decision. Each of these arguments again reflect disagreement with how the AOJ weighed the record evidence in the October 1999 rating decision. And none of them rise to the level of a valid CUE claim.

With respect to the argument that the AOJ committed CUE in the October 1999 and misapplied 38 C.F.R. § 4.3 because it did not resolve reasonable doubt in his favor and award service connection and a 10 percent rating effective November 1, 1998, for a right knee disability, the Board notes initially that this argument reflects disagreement with how the AOJ weighed the record evidence which is never a valid CUE claim. The AOJ denied service connection for a right knee disability in the October 1999 rating decision because the record evidence showed no evidence of "any injury or treatment to the right knee in service. No diagnosis of a right knee condition was made at the examination at discharge." The Veteran asserted in the July 2022 C
in the October 1999 and misapplied 38 C.F.R. § 4.3 because it did not resolve reasonable doubt in his favor and award service connection and a 10 percent rating effective November 1, 1998, for a right knee disability, the Board notes initially that this argument reflects disagreement with how the AOJ weighed the record evidence which is never a valid CUE claim. The AOJ denied service connection for a right knee disability in the October 1999 rating decision because the record evidence showed no evidence of "any injury or treatment to the right knee in service. No diagnosis of a right knee condition was made at the examination at discharge." The Veteran asserted in the July 2022 CUE motion that the AOJ misapplied § 4.3 in the October 1999 rating decision and his lay testimony regarding right knee pain, to include reported flare-ups, "and the fact I had served over 24 years in the Army should have trumped the absence of a right knee treatment record in my [claims] file." Because the positive and negative evidence was not in equipoise, the Board finds that the AOJ was not required to resolve any reasonable doubt in the Veteran's favor under § 4.3 and award service connection for this disability in the October 1999 rating decision.

With respect to the Veteran's argument that the AOJ committed CUE by misapplying 38 C.F.R. § 4.40 and not assigning sufficient probative value to his lay testimony regarding bilateral knee and cervical spine pain, including flare-ups, the Board again notes initially that this argument reflects disagreement with how the AOJ weighed the record evidence in the October 1999 rating decision. Such argument never rises to the level of a valid CUE claim. Contrary to the Veteran's assertion in the July 2022 CUE motion regarding the probative value of his lay statements about experiencing right knee pain, the AOJ specifically acknowledged the Veteran's complaint of right knee pain in the October 1999 rating decision and weighed that lay evidence against the lack of in-service complaints of or treatment for a right knee disability and the lack of a current right knee disability diagnosis when it ultimately concluded that service connection for a right knee disability was not warranted. These findings were in accord with the relevant law and regulations at the time of the October 1999 rating decision (which remain essentially unchanged since that time). With respect to the service-connected left knee disability, the AOJ concluded in the currently appealed AMA rating decision issued in March 2023 that "flare-ups were considered as part of the whole disability picture but this was not a mandatory part of the exam process" at the time of the October 1999 rating decision. In other words, the AOJ correctly noted in the March 2023 AMA rating decision that, at the time of the October 1999 rating decision, it was not required to consider flare-ups separately from other considerations (such as pain and functional loss) when evaluating the level of disability experienced by a Veteran as a result of a service-connected disability. And the AOJ specifically stated in the October 1999 rating decision that it considered functional loss due to pain when evaluating the service-connected left knee disability. With respect to the service-connected cervical spine disability, the AOJ concluded in the currently appealed AMA rating decision issued in March 2023 that there were no flare-ups present in the cervical spine at the time of the October 1999 rating decision. This finding is in accord with extant record evidence (June 1998 pre-discharge VA examination) at the time of the October 1999 rating decision which did not show any flare-ups of pain in the cervical spine. Thus, the Board finds that the AOJ considered § 4.40 in the October 1999 rating decision when it assigned separate 10 percent ratings for a service-connected cervical spine disability and a service-connected left knee disability.

With respect to the argument that the AOJ committed CUE by misapplying 38 C.F.R. § 4.42 and relying on an inadequate examination, the Board notes that this argument again reflects disagreement with how VA weighed the record evidence in the October 1999 rating decision. This argument never rises to the level of a valid CUE claim. In his July 2022 CUE motion, the Veteran asserted that a pre-discharge VA examination in June 1998 was inadequate and, as such, the AOJ committed CUE in the October 1999 rating decision by relying on this examination to adjudicate his claims of service connection for bilateral knee disabilities and for a cervical spine disability. He specifically asserted that this examination was inadequate because it did not include a special orthopedic or neurological examination to evaluate his cervical spine disability. This argument appears to raise a general challenge to
the Board notes that this argument again reflects disagreement with how VA weighed the record evidence in the October 1999 rating decision. This argument never rises to the level of a valid CUE claim. In his July 2022 CUE motion, the Veteran asserted that a pre-discharge VA examination in June 1998 was inadequate and, as such, the AOJ committed CUE in the October 1999 rating decision by relying on this examination to adjudicate his claims of service connection for bilateral knee disabilities and for a cervical spine disability. He specifically asserted that this examination was inadequate because it did not include a special orthopedic or neurological examination to evaluate his cervical spine disability. This argument appears to raise a general challenge to the professional competence of the VA examiner who conducted this pre-discharge examination. The Federal Circuit has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Veteran has not raised a specific challenge to the professional medical competence or qualifications of the VA examiner who conducted the pre-discharge VA examination in June 1998 which the AOJ relied on in the October 1999 rating decision challenged in this CUE appeal. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id.

Other Federal Circuit precedent also suggests that it was not CUE for the AOJ to rely on the pre-discharge June 1998 VA examination in adjudicating the claims of service connection for bilateral knee disabilities and for a cervical spine disability in the October 1999 rating decision challenged in this CUE appeal. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. The Veteran has not identified or submitted any evidence or argument that the pre-discharge June 1998 VA examiner was not competent or lacked the professional medical training necessary to review his service treatment records and provide competent opinions concerning the contended etiological relationships between the claimed disabilities and active service.

The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291 92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners).

It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki,
1304 (Fed. Cir. 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners).

It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019).

There has been no showing or even an allegation that the pre-discharge June 1998 VA examiner was not competent or did not report accurately what he found in his review of the claims file. The Board also finds that this VA examination is adequate for evaluation purposes because it addressed fully all of the Veteran's contentions regarding his claimed disabilities at the time of this examination. Having reviewed the record evidence, the Board concludes that the July 2022 allegation that the AOJ committed CUE in the October 1999 rating decision by misapplying § 4.42 and relying on an inadequate examination is without merit.

With respect to the allegation that the AOJ committed CUE by misapplying 38 C.F.R. § 4.45 in the October 1999 rating decision, this again reflects disagreement with how the AOJ weighed the evidence which is never a valid CUE claim. The Board notes that, in fact, a review of this rating decision clearly shows that the AOJ specifically considered § 4.45 when it awarded service connection and separate 10 percent ratings effective November 1, 1998, for a left knee disability and for a cervical spine disability. The AOJ stated in the October 1999 rating decision that the Veteran had a full range of motion in the left knee, full (or normal) left knee strength, slight edema, and normal left knee x-rays. The AOJ also stated, "Functional loss due to pain has been considered" in evaluating the service-connected left knee disability. With respect to the service-connected cervical spine disability, the AOJ stated in the October 1999 rating decision that the Veteran was treated for neck strain during active service and had limitation of motion in the cervical spine on examination. The AOJ was not required to follow § 4.45 in evaluating the claimed right knee disability because there was no evidence that the Veteran was diagnosed as having a right knee disability at the time of the October 1999 rating decision. These AOJ findings supported awarding service connection and separate 10 percent ratings effective November 1, 1998, for service-connected cervical spine disability and service-connected left knee disability. They also supported the denial of service connection for a right knee disability. Thus, the Board finds that any argument to the contrary concerning the applicability of § 4.45 as the basis for finding CUE in the October 1999 rating decision is without merit.

With respect to the argument that the AOJ committed CUE in the October 1999 rating decision by misapplying 38 C.F.R. § 4.59, the Board notes that the Federal Circuit has held that the term "disability" for VA disability compensation purposes refers to "the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Federal Circuit also made clear, however, that a Veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. The Board notes here that the Federal Circuit did not issue Saunders until 19 years after the
route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Federal Circuit also made clear, however, that a Veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. The Board notes here that the Federal Circuit did not issue Saunders until 19 years after the October 1999 rating decision challenged in this CUE appeal. Having reviewed the extant record evidence at the time of the October 1999 rating decision, the Board finds that it did not show that any right knee pain reached the required level of functional impairment of earning capacity in order to constitute a disability for VA adjudication purposes. In other words, the AOJ was not required to apply § 4.59 and award service connection and a minimum compensable rating for a right knee disability in the October 1999 rating decision based solely on the Veteran's subjective complaints of pain.

With respect to the allegation that the AOJ committed CUE in the October 1999 rating decision by not inferring and adjudicating separate service connection claims for disabilities secondary to his cervical spine disability, the Board notes initially that this argument merely reflects disagreement with how the AOJ weighed the evidence in that rating decision. Such argument never rises to the level of a valid CUE claim. The Veteran essentially contended in his July 2022 CUE motion that the AOJ committed CUE in the October 1999 rating decision by not inferring and adjudicating separate service connection claims for disabilities secondary to his cervical spine disability, to include "upper extremity radiculopathy." This argument is not supported by the record evidence at that time even under a full and sympathetic reading of the Veteran's submissions dated prior to the rating decision challenged in this CUE appeal. See Roberson,?251 F.3d at 1378. The AOJ specifically found in the currently appealed AMA rating decision issued in March 2023 that, "There is no evidence VA omitted treatment records regarding conditions secondary to your service connected cervical spine degenerative joint disease." This AOJ finding is in accord with a review of the extant record evidence dated prior to the October 28, 1999, rating decision challenged in this CUE appeal which demonstrates that the Veteran never filed a formal service connection claim for any disabilities as secondary to his cervical spine disability.

The Board recognizes here that the Veteran included a claim of service connection for "numbness/loss of feeling left hand. Hand surgery 3 Feb 1975 lacerated [Extensor Pollicis Brevis] tendon. Treated again Feb 93 loss of feeling. Poor grip. Treated again Dec 94" when he filed his original service connection claims in June 1998 prior to his separation from service in October 1998. The AOJ subsequently adjudicated this claim as a claim of service connection for left thumb injury residuals in a March 2000 rating decision. (The Board notes here parenthetically that the Veteran's allegations of CUE in the March 2000 rating decision with respect to the service-connected left thumb injury residuals will be adjudicated in a separate AMA appeal docketed under AMA docket # 221224-310126.) Having reviewed the record evidence, the Board cannot conclude that service connection claims for disabilities secondary to a cervical spine disability were reasonably raised by the Veteran's submissions when he filed his formal service connection claim for a cervical spine disability in June 1998 which was adjudicated in an October 1999 rating decision. Thus, the Board finds that the AOJ did not commit CUE in the October 28, 1999, rating decision when it did not infer and adjudicate service connection claims for disabilities secondary to his service-connected cervical spine disability, to include "upper extremity radiculopathy."

The additional allegations of CUE in the October 1999 rating decision presented in the Veteran's March 2023 submission also are not persuasive. First, with respect to the allegation that the AOJ somehow committed CUE in the October 1999 rating decision by misapplying or not applying "38 C.F.R. § 4.49," the Board notes that it cannot discern what argument the Veteran is making concerning this allegation of CUE in the October 1999 rating decision. Second, the Board observes that the AOJ was not required to follow or apply the presumption of soundness when it did not award service connection for right knee varus deformity in the October 1999 rating decision. The Board notes initially that the Veteran's argument concerning the applicability of the presumption of soundness based on the existence of a right knee varus deformity is based on evidence (VA examination in October 2001) dated subsequent to the October 1999 rating decision challenged in this CUE appeal. And it is well-settled that a valid CUE claim must be based on the extant record evidence at the time of the prior final rating action challenged on appeal. The AOJ also specifically found in the currently appealed AMA rating decision issued in March 2023 that, "Varus deformity is considered a congenital defect and generally not subject to service connection under 38 CFR 3.303(c). Varus deformity did not first become manifest during service nor did the evidence show it became aggravated by your military service." This finding is in accord with the AOJ's finding in the October 1999 rating decision challenged in this CUE appeal that the extant record evidence showed no in-service complaints of or treatment for a right knee disability or any current diagnosis of a right knee disability which could be attributed to active service. Third, the Board also observes that, under 38 U.S.C. § 1154(a)(1), the Secretary has a duty to promulgate regulations which require "due consideration" of the facts and circumstances of the Veteran's active service including "all pertinent medical and lay evidence." (The Board notes parenthetically that the remainder of 38 U.S.C. § 1154 relates to claims based on dioxin exposure and combat service so it is inapplicable to this appeal.) The Veteran's assertion in the March 2023 submission that the AOJ committed CUE in the October 1999 because it violated 38 U.S.C. § 1154(a)(1) by failing to consider all of the extant record evidence merely reflects disagreement with how the AOJ weighed that evidence. Such assertion never rises to the level of a valid CUE claim. And, as discussed above, the AOJ reviewed the extant record evidence and applied the governing law and regulations to that evidence when it adjudicated the service connection claims for bilateral knee disabilities and for a cervical spine disability. The Veteran essentially assumes for the purposes of arguing that the AOJ committed CUE in the October 1999 rating decision that VA overlooked relevant evidence because it was not discussed explicitly in that rating decision. This assumption is misplaced and does not constitute a valid CUE claim. See, for example, Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting
the AOJ weighed that evidence. Such assertion never rises to the level of a valid CUE claim. And, as discussed above, the AOJ reviewed the extant record evidence and applied the governing law and regulations to that evidence when it adjudicated the service connection claims for bilateral knee disabilities and for a cervical spine disability. The Veteran essentially assumes for the purposes of arguing that the AOJ committed CUE in the October 1999 rating decision that VA overlooked relevant evidence because it was not discussed explicitly in that rating decision. This assumption is misplaced and does not constitute a valid CUE claim. See, for example, Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Thus, the Board finds that the additional allegations of CUE in the October 1999 rating decision presented by the Veteran in his March 2023 submission are without merit.

The AOJ also correctly applied the extant law and regulations when it assigned separate 10 percent ratings for service-connected cervical spine disability and service-connected left knee disability in the October 1999 rating decision challenged in this CUE appeal. The AOJ concluded in the October 1999 rating decision that a 10 percent rating for service-connected cervical spine disability was appropriate based on the findings obtained at the Veteran's pre-discharge VA examination in June 1998. This examination showed only an inability to move his chin to his shoulder, a decrease of 10 degrees of neck motion on each side with movement towards each shoulder, and degenerative disc disease of the cervical spine at C5 C6. These findings are in accord with AOJ findings in the currently appealed AMA rating decision issued in March 2023. The AOJ stated, "There was no evidence of flare-ups and there was no indication of neurological complications at this time due to your cervical spine." With respect to the service-connected left knee disability, the AOJ also concluded in the October 1998 rating decision that an initial 10 percent rating was appropriate based on the findings at the pre-discharge VA examination in June 1998 which showed left knee edema and tenderness to the inferior patellar area and a full range of left knee motion. These findings also are in accord with AOJ findings in the currently appealed AMA rating decision issued in March 2023. Having reviewed the record evidence, the Board finds that the AOJ properly applied the extant law and regulations to the extant record evidence in the October 1999 rating decision.

With respect to the argument that, but for AOJ error in the October 28, 1999, rating decision, he is entitled to service connection and a 10 percent rating effective November 1, 1998, for a right knee disability and to disability ratings greater than 10 percent effective November 1, 1998, for his service-connected cervical spine disability and service-connected left knee disability, the Board again notes that this argument reflects disagreement with how the AOJ weighed the evidence in that rating decision. The AOJ considered the record evidence as a whole at the time of the October 1999 rating decision challenged in this appeal and concluded that separate 10 percent ratings were appropriate for the service-connected cervical spine disability and service-connected left knee disability and that service connection was not warranted for a right knee disability. As noted elsewhere, with respect to the award of service connection and a 10 percent rating for a service-connected cervical spine disability, the AOJ concluded in the currently appealed AMA rating decision issued in March 2023, "There was no evidence of flare-ups and there was no indication of neurological complications at this time [in October 1999] due to your cervical spine. There [also] is no evidence VA omitted treatment records regarding conditions secondary to your service connected cervical spine degenerative joint disease." With respect to the award of service connection and a 10 percent rating for a service-connected left knee disability, the AOJ concluded in the March 2023 AMA rating decision that "flare-ups were considered as part of the whole disability picture but this was not a mandatory part of the exam process." The AOJ also noted that the extant record evidence in October 1999 showed only normal left knee range of motion and strength and slight edema "with tenderness to the inferior patellar area." With respect to the denial of service connection for a right knee disability, the AOJ stated in the March 2023 AMA rating decision that, at the time of the October 1999 rating decision, "there was no evidence of a diagnosed [right] knee condition on examination at discharge." All of these conclusions in the currently appealed March 2023 AMA rating decision are in accord with the AOJ's prior findings that service connection and separate
of the whole disability picture but this was not a mandatory part of the exam process." The AOJ also noted that the extant record evidence in October 1999 showed only normal left knee range of motion and strength and slight edema "with tenderness to the inferior patellar area." With respect to the denial of service connection for a right knee disability, the AOJ stated in the March 2023 AMA rating decision that, at the time of the October 1999 rating decision, "there was no evidence of a diagnosed [right] knee condition on examination at discharge." All of these conclusions in the currently appealed March 2023 AMA rating decision are in accord with the AOJ's prior findings that service connection and separate 10 percent ratings were appropriate for a cervical spine disability and a left knee disability and service connection for a right knee disability was not appropriate in the October 1999 rating decision. And, as noted elsewhere, the AOJ's original determinations that service connection and separate 10 percent ratings were appropriate for a cervical spine disability and a left knee disability and service connection was not appropriate for a right knee disability were supported by the extant record evidence at the time of the October 1999 rating decision.

The Court held in Ater that an earlier effective date appeal made pursuant to a later rating decision is not inextricably intertwined with a CUE motion made pursuant to an earlier rating decision denying service connection for the same disability. See Ater v. McDonough, No. 23-2583 (Vet. App. Sept. 16, 2024). The Ater Court held that, because earlier effective date claims and CUE claims are two separate legal matters which stem from two distinct claims streams, the Board is not required to address these claims in the same decision. Here, the Veteran essentially contends that he is entitled to service connection and a 10 percent rating effective November 1, 1998, for a right knee disability based on CUE in the October 1999 which denied service connection for this disability. Having reviewed the record evidence, the Board finds that the argument concerning entitlement to service connection and a 10 percent rating for a right knee disability on the basis of CUE in the October 28, 1999, rating decision is without merit.

Having reviewed the Veteran's arguments concerning an allegation of CUE in the October 1999 rating decision, the Board finds that these arguments do not rise to the level of a valid CUE claim. They essentially dispute how the AOJ weighed the record evidence at the time of the October 1999 rating decision and never rise to the level of a valid CUE claim.

The Veteran impermissibly asks the Board to disturb the finality of the October 1999 rating decision challenged in this appeal. As noted above, he argues that the AOJ committed CUE in the October 1999 rating decision. This argument is not persuasive. The invitation presented by the Veteran to disturb the finality of the October 1999 rating decision is directly contrary to the well-settled principle of Veterans law that a Veteran cannot collaterally attack a final rating decision by filing a freestanding earlier effective date claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). It is undisputed that the October 1999 rating decision was not appealed and became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

Even assuming for the sake of argument only that there was error in the October 28, 1999, rating decision, because it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. Again, the AOJ granted service connection for a cervical spine disability (which it characterized as degenerative joint disease cervical spine) and for a left knee disability (which it characterized as left knee injury, partial lateral meniscectomy), assigning separate 10 percent ratings effective November 1, 1998, and denied service connection for a right knee disability (which it characterized as a right knee condition) in the October 28, 1999, rating decision. The AOJ considered the available medical evidence which demonstrated that a cervical spine disability and a left knee disability were related to active service and a right knee disability was not related to service. The evidence reviewed in this rating decision included a pre-discharge VA examination in June 1998 which showed an inability to move his chin to his shoulder, a decrease of 10 degrees of neck motion on each side with movement towards each shoulder, left knee edema and tenderness to the inferior patellar area, a full range of left knee motion, and degenerative disc disease of the cervical spine at C5 C
for a right knee disability (which it characterized as a right knee condition) in the October 28, 1999, rating decision. The AOJ considered the available medical evidence which demonstrated that a cervical spine disability and a left knee disability were related to active service and a right knee disability was not related to service. The evidence reviewed in this rating decision included a pre-discharge VA examination in June 1998 which showed an inability to move his chin to his shoulder, a decrease of 10 degrees of neck motion on each side with movement towards each shoulder, left knee edema and tenderness to the inferior patellar area, a full range of left knee motion, and degenerative disc disease of the cervical spine at C5 C6. As noted elsewhere, the AOJ concluded that a 10 percent rating was appropriate for service-connected cervical spine disability due to "slightly limited motion of the cervical spine." The AOJ also concluded that a 10 percent rating was appropriate for service-connected left knee disability due to slight left knee edema and complaints of pain. The AOJ further concluded that service connection for a right knee disability was not appropriate because there was no evidence of a current diagnosis of a right knee disability which was related to active service. In other words, the record evidence demonstrates what the AOJ previously concluded in the October 1999 rating decision, i.e., that service connection and separate 10 percent ratings for a cervical spine disability and for a left knee disability were warranted and service connection for a right knee disability was not warranted. Thus, it is not absolutely clear that a different result would have ensued under the interpretation advanced by the Veteran in his CUE motion. Because it is not absolutely clear to the Board that a different result would have ensued if the AOJ had weighed the record evidence under the theory advanced by the Veteran in this appeal, any alleged error made by the AOJ in the October 28, 1999, rating decision in not assigning disability ratings greater than 10 percent for the service-connected cervical spine disability or the service-connected left knee disability and in not awarding service connection for a right knee disability is not CUE. And, as noted above, the AOJ's conclusions in the October 28, 1999, rating decision with respect to the assignment of separate 10 percent ratings for service-connected cervical spine disability and service-connected left knee disability and the denial of service connection for a right knee disability were fully supported by the available evidence at the time of that decision.

The record evidence does not support finding that the October 28, 1999, rating decision, which granted, in pertinent part, service connection and assigned separate 10 percent ratings effective November 1, 1998, for a cervical spine disability and for a left knee disability and denied service connection for a right knee disability, was the product of CUE. The Veteran otherwise has not identified or submitted any evidence demonstrating that the October 28, 1999, rating decision was the product of CUE. The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In summary, the Board finds that the October 28, 1999, rating decision, which granted, in pertinent part, service connection and assigned separate 10 percent ratings effective November 1, 1998, for a cervical spine disability and for a left knee disability and denied service connection for a right knee disability, was not the product of CUE.

2. Whether the March 31, 2000, rating decision, which granted, in pertinent part, claims of service connection for lumbosacral strain and for depression and assigned separate 10 percent ratings effective November 1, 1998, was the product of CUE

The Board finally is not persuaded that the March 31, 2000, rating decision, which granted, in pertinent part, claims of service connection for lumbosacral strain and for depression and assigned separate 10 percent ratings effective November 1, 1998, was the product of CUE. The Veteran essentially contends that the AOJ committed CUE in the March 31, 2000, rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. The Board notes initially that, because the AOJ recharacterized the Veteran's depression as service-connected traumatic brain injury (TBI), posttraumatic stress disorder (PTSD) (previously diagnosed as including major depressive disorder with ataxia symptoms), it will refer to this disability as "TBI PTSD" for the remainder of this decision. He specifically contends that the AOJ committed CUE by not addressing flare-ups of lumb
percent ratings effective November 1, 1998, was the product of CUE. The Veteran essentially contends that the AOJ committed CUE in the March 31, 2000, rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. The Board notes initially that, because the AOJ recharacterized the Veteran's depression as service-connected traumatic brain injury (TBI), posttraumatic stress disorder (PTSD) (previously diagnosed as including major depressive disorder with ataxia symptoms), it will refer to this disability as "TBI PTSD" for the remainder of this decision. He specifically contends that the AOJ committed CUE by not addressing flare-ups of lumbosacral spine pain when it assigned a 10 percent rating effective November 1, 1998, for the service-connected lumbosacral strain in the March 31, 2000, rating decision. He next contends that the AOJ committed CUE by not obtaining a neurological evaluation prior to assigning a 10 percent rating effective November 1, 1998, for the service-connected lumbosacral strain in the March 31, 2000, rating decision. He also contends that the AOJ committed CUE by not adjudicating separate service connection claims for disabilities secondary to the service-connected lumbosacral strain in the March 31, 2000, rating decision. With respect to the service-connected TBI-PTSD, the Veteran specifically contends that the AOJ committed CUE because it did not have access to or review all of the extant record evidence in the March 31, 2000, rating decision. He next contends that the AOJ committed CUE in not evaluating him for PTSD prior to the March 31, 2000, rating decision. He further contends that the AOJ committed CUE by not giving his lay statements concerning the severity of these service-connected disabilities sufficient probative weight in the March 31, 2000, rating decision. He also further contends that the AOJ misapplied 38 C.F.R. § 4.126(a) when it promulgated a March 2001 SOC which included an increased rating claim for his service-connected TBI-PTSD. He finally contends that, but for AOJ error in the March 31, 2000, rating decision, he is entitled to a disability rating greater than 10 percent effective November 1, 1998, for his service-connected lumbosacral strain and a disability rating greater than 30 percent rating effective November 1, 1998, for his service-connected TBI-PTSD.

The Board finds, however, that the AOJ properly considered the relevant evidence (service treatment records, a pre-discharge VA examination in June 1998, and VA examinations in December 1999) and governing law and regulations when it granted service connection and assigned separate 10 percent ratings effective November 1, 1998, for lumbosacral strain and for TBI-PTSD in the March 31, 2000, rating decision. The arguments presented by the Veteran essentially disagree with how the AOJ weighed the record evidence in the March 31, 2000, rating decision which can never rise to the level of a valid CUE claim.

The Veteran included his original claims of service connection for lumbosacral strain (which he characterized as periodic back pain) and for TBI-PTSD (which he characterized as insomnia and stress) in statements on a VA Form 21-526, "Veteran's Application For Compensation Or Pension," dated on June 19, 1998. He stated that his back pain stemmed from in-service motor vehicle accidents in February 1977 and in June 1984. He also stated that his most recent back pain started in January 1998 "and lasted several weeks." He stated further that he continued to be treated for insomnia and stress.

In a rating decision dated on March 31, 2000, and issued to the Veteran on April 4, 2000, the AOJ granted, in pertinent part, claims of service connection for lumbosacral strain and for TBI-PTSD (which was characterized as depression), assigning separate 10 percent ratings effective November 1, 1998. The AOJ stated that the available service treatment records showed that the Veteran injured his lumbosacral spine in an in-service motor vehicle accident and complained of back pain since that time. The AOJ essentially found that a pre-discharge VA examination in June 1998 showed degenerative disc disease of the lumbosacral spine at L5 S1 on x-rays. The AOJ concluded that a 10 percent rating
the Veteran on April 4, 2000, the AOJ granted, in pertinent part, claims of service connection for lumbosacral strain and for TBI-PTSD (which was characterized as depression), assigning separate 10 percent ratings effective November 1, 1998. The AOJ stated that the available service treatment records showed that the Veteran injured his lumbosacral spine in an in-service motor vehicle accident and complained of back pain since that time. The AOJ essentially found that a pre-discharge VA examination in June 1998 showed degenerative disc disease of the lumbosacral spine at L5 S1 on x-rays. The AOJ concluded that a 10 percent rating for service-connected lumbosacral strain was warranted for characteristic painful or limited motion in the lumbosacral spine. With respect to TBI-PTSD, the AOJ essentially found that the Veteran experienced stress-related insomnia. The AOJ also concluded that a 10 percent rating for service-connected TBI-PTSD was warranted because the Veteran was treated for stress management and insomnia during active service, continued to experienced sleep impairment after service, and currently had mild or transient symptoms. This decision was not appealed with respect to the service-connected lumbosacral strain and became final with respect to this claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran also did not submit any relevant evidence or argument within 1 year of the March 2000 rating decision which would render it non-final for VA adjudication purposes with respect to the service-connected lumbosacral strain. See Buie, 24 Vet. App. at 251-52.

The Veteran disagreed, in pertinent part, with the March 31, 2000, rating decision in a letter dated on August 27, 2000, and date-stamped as received by the AOJ on August 31, 2000, and requested a disability rating greater than 10 percent for his service-connected TBI-PTSD. He asserted that the disability rating for his service-connected TBI-PTSD "should be adjusted to 30% or higher. My ability to cope with stressful situations is limited." He reported that he continued to experience sleep impairment, changed jobs twice since service separation, and experienced nightmares related to traumatic in-service events. He also stated that he sought counseling from chaplains during active service rather than seeking formal in-service psychiatric treatment because he was afraid that the latter would prevent him from being promoted.

The AOJ promulgated an SOC which included the issue of entitlement to a disability rating greater than 10 percent for TBI-PTSD (which was characterized as depression) and mailed it to the Veteran on April 3, 2001. Because the Veteran did not perfect a timely appeal, the March 31, 2000, rating decision became final with respect to this claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

The Veteran filed a claim of CUE in the March 31, 2000, rating decision with respect to the award of service connection and a 10 percent rating effective November 1, 1998, for TBI-PTSD (which he characterized as "Depression/PTSD") in a letter dated on January 24, 2022, and date-stamped as received electronically by VA that same day. He asserted that the AOJ committed CUE in the March 2000 rating decision when it awarded service connection and a 10 percent rating effective November 1, 1998, for TBI-PTSD by not considering all of the extant record evidence. He next asserted that the AOJ committed CUE by not evaluating him for PTSD prior to the March 2000 rating decision. He also asserted that the AOJ committed CUE in the March 2001 SOC because it misapplied or failed to apply 38 C.F.R. § 4.126(a) with respect to the increased rating claim for service-connected TBI-PTSD. He finally asserted that the AOJ committed CUE in not inferring and adjudicating a service connection claim for PTSD based on the extant record evidence, to include multiple lay statements which he submitted prior to the March 2000 rating decision.

In a letter dated on July 14, 2022, and date-stamped as received electronically by VA that same day, the Veteran filed, in pertinent part, a claim of CUE in the March 31, 2000, rating decision which granted, in pertinent part, a claim of service connection for lumbosacral strain, assigning a 10 percent rating effective November 1, 1998. He essentially contended that the AOJ committed CUE in the March 2000 rating decision by not conducting neurological and/or orthopedic examinations for his lumbosacral strain. He stated, "[T]he rating official should have noted additional neurological testing / work-up was required before assigning a 10% rating for lumbar strain" in the March 2000 rating decision and the AOJ committed CUE in not ordering additional testing. He also essentially contended that the AOJ misinterpreted or overlooked findings obtained on examination of his lumbosacral strain and asserted that the AOJ failed to discuss retrolisthesis of L5 S1 noted on a December 1999 examination in the March 2000 rating decision which was CUE. He next contended that the AOJ committed CUE in the March 2000 rating decision by not discussing his reported flare-ups of low back pain. He finally contended that the AOJ committed CUE in the March 2000 rating decision by not inferring and adjudicating service connection for additional disabilities, including sciatica and lumbar radiculopathy, as secondary to his service-connected lumbosacral strain.

The AOJ denied, in pertinent part, the Veteran's claim of CUE in the March 31, 2000, rating decision which granted, in pertinent part, claims of service connection for lumbosacral strain and for TBI-PTSD (which it characterized as depression), assigning separate 10 percent ratings effective November 1, 1998, in the currently appealed AMA rating decision dated on March 3, 2023, and issued to him on March 6, 2023. The AOJ stated that it originally granted service connection for TBI-PTSD in the March 2000 rating decision based on December 1999 VA examination findings which showed that the Veteran was diagnosed as having depressive disorder manifested by "symptoms of irritability, sleeplessness, bowel dysfunction, and loss of interest in social and recreational activities" and a Global Assessment of Functioning (GAF) score of 80. The AOJ concluded that, at the time of the March 2000 rating decision, "The overall evidentiary record shows that the severity of your disability most closely approximates the criteria for a 10 percent disability evaluation." With respect to lumbosacral strain, the AOJ stated that it originally granted service connection for this disability in the March 2000 rating decision based on VA examinations in June 1998 and in December 1999 which diagnosed the Veteran as having degenerative disc disease "with slight retrolisthesis" and degenerative joint disease of the lumbosacral spine, respectively. The AOJ concluded that, at the time of the March 2000 rating decision:

A 10 percent evaluation was warranted based on your limited and painful range of motion....The etiology of your back condition does not in this case warrant a separate or different evaluation than what was already granted. Therefore[,] the fact that trauma (from motor vehicle accidents) was the cause of your back condition does not change the evaluation or effective date for your 10 percent grant....Having an additional diagnosis of retrolisthesis would not establish another condition for service connection[;] it would simply be evaluated with the back condition that is considered service connected. All back conditions are evaluated using the same criteria and 38 C.F.R. § 4.14 prohibits the evaluation of the same manifestation under different diagnoses.

The AOJ then essentially concluded that consideration of flare-ups as a separate symptom of a lumbosacral spine disability was not mandated prior to August 2011. Then AOJ next concluded that radiculopathy of the bilateral lower extremities was not included in the Veteran's original service connection claim for a lumbosacral spine disability and was not found on either the June 1998 or December 1999 examination. The AOJ further concluded
condition for service connection[;] it would simply be evaluated with the back condition that is considered service connected. All back conditions are evaluated using the same criteria and 38 C.F.R. § 4.14 prohibits the evaluation of the same manifestation under different diagnoses.

The AOJ then essentially concluded that consideration of flare-ups as a separate symptom of a lumbosacral spine disability was not mandated prior to August 2011. Then AOJ next concluded that radiculopathy of the bilateral lower extremities was not included in the Veteran's original service connection claim for a lumbosacral spine disability and was not found on either the June 1998 or December 1999 examination. The AOJ further concluded, "There is no evidence [that] VA omitted treatment records regarding conditions secondary to your service connected lumbosacral spine strain." The AOJ also further concluded that consideration of § 4.59 would not result in "a higher evaluation based on the severity of pain."

The Veteran disagreed with the denial of his CUE claim in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on March 8, 2023, and date-stamped as received electronically by VA that same day. In a letter attached to this VA Form 10182, the Veteran asserted that the AOJ committed CUE in the March 2000 rating decision when it awarded service connection and a 10 percent rating for TBI-PTSD because "VA failed to associate all of the symptoms clearly documented in my medical record and initial VA claim with TBI and/or PTSD." He specifically contended that the December 1999 VA examiner did not consider his medical records prior to examining him. He next contended that the AOJ committed CUE in the March 2000 rating decision by basing the 10 percent rating for service-connected TBI-PTSD on his GAF score and not his symptoms. He also contended that "at a minimum my rating should have been 30% effective November 1, 1998" for TBI-PTSD based on his reported chronic sleep impairment. He essentially contended further that the AOJ committed CUE in acknowledging his symptoms of TBI but not inferring and adjudicating a separate service connection claim for this disability in the March 2000 rating decision. He finally cited Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992), as support for his claim of CUE in the March 2000 rating decision with respect to the award of service connection and a 10 percent rating for TBI-PTSD.

An AOJ's failure to address an implied claim is an action that can be challenged through a motion of CUE. Deshotel,?457 F.3d at 1258; Richardson, 20?Vet. App. at 64?. When presented with such a request, VA first must give a full and sympathetic reading to the claimant's prior submissions to determine whether such a claim was reasonably raised. Roberson,?251 F.3d at 1378; Szemraj,?357 F.3d at 1370. If it is determined that a claim was reasonably raised, then VA must determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, that claim still must be adjudicated. If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE. Richardson,?20?Vet. App.?64.

The Board again notes that CUE is a very specific and rare kind of error and a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Fugo, 6 Vet. App. at 43 44; see also Luallen, 8 Vet. App. at 96. In challenging the March 31, 2000, rating decision on the basis of CUE, the Veteran essentially contends that the AOJ committed CUE in this rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. He specifically contends that the AOJ committed CUE by not addressing flare-ups of lumbosacral spine pain when it assigned a 10 percent rating effective November 1, 1998, for service-connected lumbosacral strain in the March 2000 rating decision.
during the adjudication process. Fugo, 6 Vet. App. at 43 44; see also Luallen, 8 Vet. App. at 96. In challenging the March 31, 2000, rating decision on the basis of CUE, the Veteran essentially contends that the AOJ committed CUE in this rating decision by misinterpreting the extant record evidence and misapplying the law and regulations. He specifically contends that the AOJ committed CUE by not addressing flare-ups of lumbosacral spine pain when it assigned a 10 percent rating effective November 1, 1998, for service-connected lumbosacral strain in the March 2000 rating decision. He next contends that the AOJ committed CUE by not obtaining a neurological evaluation for his lumbosacral strain when it assigned a 10 percent rating effective November 1, 1998, for service-connected lumbosacral strain in the March 2000 rating decision. He further contends that the AOJ committed CUE by not adjudicating separate service connection claims for disabilities secondary to the service-connected lumbosacral strain in the March 2000 rating decision. With respect to the service-connected TBI-PTSD, the Veteran specifically contends that the AOJ committed CUE because it did not have access to or review all of the extant record evidence when it awarded service connection and a 10 percent rating effective November 1, 1998, for TBI-PTSD in the March 2000 rating decision. He also specifically contends that the AOJ committed CUE in not evaluating him for PTSD prior to the March 2000 rating decision. He further contends that the AOJ committed CUE by not giving sufficient probative weight to his lay statements concerning the severity of both of these his service-connected disabilities in the March 2000 rating decision. He also further contends that the AOJ misapplied 38 C.F.R. § 4.126(a) when it promulgated a March 2001 SOC which included an increased rating claim for his service-connected TBI-PTSD. He finally contends that, but for AOJ error in the March 31, 2000, rating decision, he is entitled to a disability rating greater than 10 percent effective November 1, 1998, for service-connected lumbosacral strain and to a 30 percent rating (or higher) effective November 1, 1998, for service-connected TBI-PTSD. None of these arguments rise to the level of a valid CUE claim.

With respect to the argument that the AOJ committed CUE in the March 31, 2000, rating decision by misinterpreting the record evidence and misapplying the extant law at that time, the Board notes initially that this argument merely reflects disagreement with how the AOJ weighed the evidence in that rating decision. Such argument never rises to the level of a valid CUE claim. The Veteran specifically argued in a July 2022 CUE motion and a March 2023 submission that the AOJ committed CUE by not addressing flare-ups of lumbosacral spine pain and failing to schedule him for neurologic evaluation prior to awarding service connection and a 10 percent rating for lumbosacral strain in the March 2000 rating decision. He also contends that the AOJ committed CUE because it did not have access to or review all of the extant record evidence when it awarded service connection and a 10 percent rating effective November 1, 1998, for TBI-PTSD in the March 2000 rating decision.

It is not CUE for the AOJ to weigh the evidence in a rating decision concerning the appropriate disability rating for a service-connected disability. Here, the AOJ weighed the record evidence (service treatment records, VA examinations dated in June 1998 and in December 1999, and a December 1999 statement from Dr. K. J. J., a private clinician) and found that separate 10 percent ratings effective November 1, 1998, for the Veteran's service-connected lumbosacral strain and TBI-PTSD were appropriate.

With respect to the argument that the AOJ committed CUE by not addressing flare-ups of lumbosacral spine pain and failing to schedule him for neurologic evaluation prior to awarding service connection and a 10 percent rating for lumbosacral strain in the March 2000 rating decision, the Board again notes that this argument reflects disagreement with how the AOJ weighed the evidence. Such argument never rises to the level of a valid CUE claim. Moreover, the March 2000 rating decision which shows that he did not experience flare-ups and had VA neurology examination in December 1999. The AOJ stated in the March 2000 rating decision that a 10 percent rating for service-connected lumbosacral strain was based on the Veteran's "characteristic painful or limited motion." The AOJ noted that the Veteran injured his back in an in-service motor vehicle accident and reported ongoing back pain since that time "sometimes associated with stiffness on motion, but there is no radiation of pain." The AOJ then noted the Veteran's VA examination findings of back tenderness, no spasm, flexion to 80 degrees without pain and from 80 to 90 degrees with pain, x ray evidence of narrowing of intervertebral disc space at L5 S1, and diagnosis of chronic lumbosacral strain. These findings reported in the March 2000 rating decision come from both the December 1999 VA neurology and VA joints examinations. Neither of these examinations demonstrate that the Veteran reported or experienced flare-ups of lumbosacral spine pain. The Veteran essentially assumes for the purpose of arguing that the AOJ committed CUE in the March 2000 rating decision that VA overlooked relevant evidence because it was not discussed explicitly in that rating decision. This assumption is misplaced and does not constitute a valid CUE claim. See, for example, Timberlake, 14 Vet. App. at 122.

The AOJ specifically listed the Veteran's service treatment records, his pre-discharge VA examination in June 1998, and the December 1999 VA examinations as the evidence reviewed as part of that decision. And, as noted above, the AOJ cited multiple findings from this evidence when it awarded service connection and a 10 percent rating effective November 1, 1998, for lumbosacral strain. In the currently appealed AMA rating decision issued in March 2023, the AOJ stated, "There is no evidence VA omitted treatment records regarding conditions secondary to your service connected lumbosacral spine strain" at the time of the March 2000 rating decision challenged in this CUE appeal. The Board agrees. .

With respect to the argument that the AOJ committed CUE by not adjudicating separate service connection claims for disabilities secondary to the service-connected lumbosacral strain in the March 2000 rating decision, the Board again notes that this argument reflects disagreement with how the AOJ weighed the evidence in that rating decision. Such argument does not constitute a valid CUE claim and also is not persuasive. The Veteran asserted in his July 2022 CUE motion that the AOJ committed CUE in the March 2000 rating decision by not inferring and adjudicating separate service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, each as secondary to service-connected lumbosacral strain. This argument is not supported by the record evidence at that time even under a full and sympathetic reading of the Veteran's submissions dated prior to the rating decision challenged in this CUE appeal. See Roberson,?251 F.3d at 1378. The AOJ specifically found in the currently appealed AMA rating decision issued in March 2023 that, although the extant record evidence at the time of the March 2000 rating decision contained a diagnosis of degenerative disc disease with slight retrolisthesis, "[h]aving an additional diagnosis of retrolisthesis would not establish another condition for service connection[;] it would simply be evaluated with the back condition that is considered service connected." The AOJ concluded in the currently appealed March 2023 AMA rating decision that compensating the Veteran twice for both lumbosacral strain and retrolisthesis of the lumbosacral spine would constitute impermissible pyramiding; thus, it was not CUE for the AOJ not to award service connection for both of these diagnosed lumbosacral spine disabilities in the March 2000 rating decision. See 38
rating decision contained a diagnosis of degenerative disc disease with slight retrolisthesis, "[h]aving an additional diagnosis of retrolisthesis would not establish another condition for service connection[;] it would simply be evaluated with the back condition that is considered service connected." The AOJ concluded in the currently appealed March 2023 AMA rating decision that compensating the Veteran twice for both lumbosacral strain and retrolisthesis of the lumbosacral spine would constitute impermissible pyramiding; thus, it was not CUE for the AOJ not to award service connection for both of these diagnosed lumbosacral spine disabilities in the March 2000 rating decision. See 38 C.F.R. § 4.14 (discussing pyramiding); see also Amberman v. Shinseki, 570 F.3d 1377, 1380-81 (Fed. Cir. 2009), and Esteban v. Brown, 6 Vet. App. 259, 261 62 (1994). The AOJ next stated in the March 2023 AMA rating decision that the Veteran had not filed a claim of service connection for lumbar radiculopathy and there were no relevant examination findings in either the June 1998 or December 1999 VA examinations of his lumbosacral spine.

These AOJ findings in the currently appealed March 2023 AMA rating decision are in accord with a review of the extant record evidence dated prior to the March 2000 rating decision challenged in this CUE appeal. The extant record evidence clearly shows that the Veteran never filed formal service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, each as secondary to his service-connected lumbosacral strain. He included his original claim of service connection for lumbosacral strain in statements on his VA Form 21-526, "Veteran's Application For Compensation Or Pension," dated on June 19, 1998. As noted above, he characterized his lumbosacral strain as periodic back pain in statements included on his VA Form 21 526. He stated that his back pain stemmed from in-service motor vehicle accidents in February 1977 and in June 1984. He also stated that his most recent of back pain started in January 1998 "and lasted several weeks." He did not file a claim of service connection for any disabilities secondary to his lumbosacral strain, to include retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, at that time. The AOJ specifically found in the March 2000 rating decision that "there is no radiation of pain" or radiculopathy in the Veteran's lumbosacral spine on examination. Having reviewed the record evidence, the Board cannot conclude that service connection claims for any disabilities secondary to lumbosacral strain, to include retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, were reasonably raised by any of the Veteran's submissions when he filed his formal service connection claim for lumbosacral strain (which he characterized as back problems in June 1998) was adjudicated in the March 2000 rating decision challenged in this CUE appeal. Nor were any secondary service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy reasonably raised by the extant record evidence at the time of the March 2000 rating decision. Thus, the Board finds that the AOJ did not commit CUE in the March 30, 2000, rating decision when it did not infer and adjudicate service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy.

The Court has held repeatedly that "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing are the essential requirements of any claim." See, for example, Brokowski, 23 Vet. App. at 84. The Court held in Brokowski that, "Although the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant." Id., at 84 85 (citations omitted) (internal quotations omitted). Service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy
Court has held repeatedly that "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing are the essential requirements of any claim." See, for example, Brokowski, 23 Vet. App. at 84. The Court held in Brokowski that, "Although the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant." Id., at 84 85 (citations omitted) (internal quotations omitted). Service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, each as secondary to his service-connected lumbosacral strain were not reasonably raised by the record evidence or by the Veteran who also did not express any intent to file these claims, identify that he sought service connection for any of these disabilities, and did not communicate in writing any intent to seek or file for service connection for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, each as secondary to his service-connected lumbosacral strain. As a result, the Board finds that it was not CUE for the AOJ not to infer and adjudicate service connection claims for retrolisthesis of the lumbosacral spine, sciatica, and/or for lumbar radiculopathy, each as secondary to his service-connected lumbosacral strain, in the March 2000 rating decision based on the extant record evidence or the actual or constructive possession of any records dated prior to this date.

With respect to the argument that the AOJ committed CUE in the March 2000 rating decision because it did not have access to or review all of the extant record evidence when it awarded service connection and a 10 percent rating effective November 1, 1998, for TBI-PTSD, the Board again notes that this argument reflects disagreement with how the AOJ weighed the evidence which never rises to the level of a valid CUE claim. The Veteran essentially asserted in his March 2023 submission that the AOJ committed CUE in the March 2000 rating decision because it did not apply 38 U.S.C. § 1154(a) and consider all of the extant medical and lay evidence. This assertion again merely reflects disagreement with how the AOJ weighed that evidence. As discussed above, the AOJ reviewed the extant record evidence and applied the governing law and regulations to that evidence when it adjudicated the service connection claim for TBI-PTSD. The Veteran again essentially assumes for the purposes of arguing that the AOJ committed CUE in the March 2000 rating decision that VA overlooked relevant evidence because it was not discussed explicitly in that rating decision. This assumption is misplaced and does not constitute a valid CUE claim. See, for example, Timberlake, 14 Vet. App.at 122. Thus, the Board finds that the argument that the AOJ committed CUE in the March 2000 rating decision because it did not have access to or review all of the extant record evidence when it awarded service connection and a 10 percent rating effective November 1, 1998, for TBI-PTSD is without merit.

With respect to the argument that the AOJ committed CUE in not evaluating him for PTSD prior to the March 31, 2000, rating decision, it appears that the Veteran disputes the characterization of certain medical evidence relied upon by the AOJ in adjudicating the service connection claim for TBI-PTSD. This again reflects disagreement with how the AOJ weighed the evidence in the March 2000 rating decision which never rises to the level of a valid CUE claim. The Veteran specifically contended in his March 2023 submission that the AOJ committed CUE because it relied on a December 2000 VA examination showing that a diagnosis of PTSD "was a progression of the previous depression diagnosis" when, in fact, he asserted that this diagnosis was a correction of a previous diagnosis as noted in subsequent VA examinations dated in July 2020 and in June 2021. He also contended in his January 2022 CUE motion and again in the March 2023 submission that the AOJ committed CUE in the March 2000 rating decision because it did not cite an August 2000 letter which he apparently submitted concerning the appropriate disability rating for service-connected TBI-PTSD. The Veteran's argument here relies on evidence dated after the March 2000 rating decision and a valid claim of CUE must be based on the extant record evidence as of the date of the rating decision challenged on appeal
diagnosis" when, in fact, he asserted that this diagnosis was a correction of a previous diagnosis as noted in subsequent VA examinations dated in July 2020 and in June 2021. He also contended in his January 2022 CUE motion and again in the March 2023 submission that the AOJ committed CUE in the March 2000 rating decision because it did not cite an August 2000 letter which he apparently submitted concerning the appropriate disability rating for service-connected TBI-PTSD. The Veteran's argument here relies on evidence dated after the March 2000 rating decision and a valid claim of CUE must be based on the extant record evidence as of the date of the rating decision challenged on appeal. What VA examiners concluded in July 2020 and June 2021 examinations concerning the Veteran's PTSD diagnosis is irrelevant to his current CUE appeal because these examinations occurred approximately 2 decades after the March 2000 rating decision. Similarly, a letter dated from the Veteran in August 2000 could not have been considered by the AOJ in the March 2000 rating decision because it was created 5 months later. In other words, it is impossible for the Board to find CUE in the March 2000 rating decision when the evidence cited by the Veteran as evidence of CUE did not exist until after the AOJ promulgated that rating decision.

In analyzing the Veteran's assertion of CUE in awarding service connection and a 10 percent rating for TBI-PTSD in the March 2000 rating decision, the AOJ concluded in the March 2023 AMA rating decision:

Following a review of the entire claims folder regarding this condition, no error was found in the evaluation or effective date. VA did not neglect its responsibility to review the evidence and render a decision appropriate with the evidence. Service connection is not warranted for TBI prior to January 29, 2020, the date of your Intent to File for your April 27, 2020 claim....The highest evaluation was granted based on the evidence in the file. Despite the evidence of a [TBI] during service, there was no diagnosis of this [disability] that warranted service connection prior to the date we granted service connection.

The Board agrees. These findings also are in accord with the AOJ's previous findings in the March 2000 rating decision challenged in this CUE appeal that the Veteran only was diagnosed as having recurrent depressive disorder on VA examination. In the March 2000 rating decision, the AOJ also stated, " The Veteran noted that he generally functions well but experiences recurrent depressive episodes which occur spontaneously....The Veteran [only] was treated for stress and insomnia during service." There is no support for finding that the AOJ committed CUE in not inferring and adjudicating a separate service connection claim for PTSD prior to the March 2000 rating decision even under a full and sympathetic reading of the Veteran's submissions dated prior to that rating decision. The Veteran's original claims included on his June 1998 VA Form 21 526 included a claim for depression which he characterized as, "Treated for possible clinical depression and stress Mar Apr 98." See Roberson,?251 F.3d at 1378. Thus, the Board finds that it was not CUE for the AOJ to evaluate the Veteran for depression and not for PTSD prior to the March 31, 2000, rating decision.

With respect to the argument that the AOJ committed CUE in the March 2000 rating decision by not giving sufficient probative weight to his lay statements concerning the severity of his service-connected lumbosacral strain and service-connected TBI-PTSD (which was characterized as depression), this argument reflects disagreement with how the AOJ weighed the record evidence and is an invalid CUE claim. A review of this rating decision shows that it is complete with references to what the Veteran reported during and after active service to clinicians who treated him or examined him for VA adjudication purposes for both his TBI-PTSD (or depression) and lumbosacral strain. In other words, the AOJ clearly considered the Veteran's lay statements in determining the appropriate rating for both of these service-connected disabilities in the March 2000 rating decision. For example, the AOJ stated, "He reported that he has had...low back pain since" an in-service motor vehicle accident. The AOJ also described the Veteran's reports on VA examinations that his "back pain is sometimes associated with stiffness on motion, but there is no radiation of pain." The AOJ described the Veteran's reported in-service traumatic experiences as follows:

The Veteran reported that during service in 1991 two of the soldiers under his command were killed in an oil truck accident and explosion. The Veteran
osacral strain. In other words, the AOJ clearly considered the Veteran's lay statements in determining the appropriate rating for both of these service-connected disabilities in the March 2000 rating decision. For example, the AOJ stated, "He reported that he has had...low back pain since" an in-service motor vehicle accident. The AOJ also described the Veteran's reports on VA examinations that his "back pain is sometimes associated with stiffness on motion, but there is no radiation of pain." The AOJ described the Veteran's reported in-service traumatic experiences as follows:

The Veteran reported that during service in 1991 two of the soldiers under his command were killed in an oil truck accident and explosion. The Veteran stated [that] he was at the scene and viewed the bodies which were badly damaged. He subsequently had sensations of guilt and depression. He was irritable and suffered from impaired sleep. He experienced dreams in which he visualized the bodies. [The] Veteran stated [that] he noted the onset of periods of depression but managed to continue functioning effectively.

As noted above, it is not CUE for the AOJ to weigh the evidence in a rating decision concerning the appropriate disability rating for a service-connected disability. The Veteran's argument regarding AOJ CUE in failing to assign sufficient probative weight to his lay statements reflects disagreement with how the AOJ weighed the record evidence in the March 2000 rating decision. Such argument is never a valid CUE claim. In light of the detailed recitation of what he reported during and after active service, including to in-service and post-service VA clinicians, concerning both his lumbosacral strain and TBI PTSD (characterized as depression) in the March 2000 rating decision challenged in this appeal, the Board finds that the Veteran's assertions in the July 2022 CUE motion and the March 2023 submission that the AOJ committed CUE by not giving his lay statements sufficient probative weight in the March 2000 rating decision are not persuasive.

The Veteran additionally argues that AOJ misapplied 38 C.F.R. § 4.126(a) and committed CUE when it promulgated a March 2001 SOC which included an increased rating claim for his service-connected TBI-PTSD (characterized as depression). The Board notes initially that a Legacy SOC is not properly the subject of a CUE motion. Instead, a Legacy SOC provides a summary of the evidence, the applicable laws and regulations for any issue(s) being appealed, and the AOJ's decision on any issue(s) being appealed. See 38 C.F.R. § 19.29. The Board next notes that, even assuming for the sake of argument only that an SOC properly could be the subject of a CUE motion, the Veteran's argument again boils down to a disagreement with how the AOJ weighed the record evidence in adjudicating a higher initial rating claim for TBI-PTSD in the March 2001 SOC. The Veteran essentially contended in his January 2022 CUE motion that the AOJ committed CUE in the March 2001 SOC because it did not consider all of the evidence as required under § 4.126(a) in adjudicating an increased rating claim for TBI-PTSD. The March 2001 SOC essentially repeated the analysis of the Veteran's service connection claim for depression included in the March 2000 rating decision, noting in detail his reported symptoms, the in-service experiences which led him to experience TBI-PTSD (which was characterized as depression), and the findings obtained on VA examinations. The March 2001 SOC then concluded that a 10 percent rating for service-connected TBI-PTSD was appropriate. In other words, a plain reading of the March 2001 SOC shows that the AOJ considered "all of the evidence of record that bears on occupational and social impairment" as is required by § 4.126(a) when it evaluated the severity of the Veteran's service-connected TBI-PTSD. See 38 C.F.R. § 4.126(a). The Board notes in this regard that § 4.126(a) has not been revised since it was added to the Rating Schedule in October 1996. See 61 Fed. Reg. 52695, 52700 (Oct. 8, 1996) as codified at 38 C.F.R. § 4.126(a). Thus, the Board finds that the argument that the AOJ misapplied 38 C.F.R. § 4.126(a) and committed CUE when it promulgated a March 2001 SOC is without merit.

The Veteran also argues additionally in his March 2023 submission that the AOJ
C.F.R. § 4.126(a). The Board notes in this regard that § 4.126(a) has not been revised since it was added to the Rating Schedule in October 1996. See 61 Fed. Reg. 52695, 52700 (Oct. 8, 1996) as codified at 38 C.F.R. § 4.126(a). Thus, the Board finds that the argument that the AOJ misapplied 38 C.F.R. § 4.126(a) and committed CUE when it promulgated a March 2001 SOC is without merit.

The Veteran also argues additionally in his March 2023 submission that the AOJ committed CUE in the March 2000 rating decision when it awarded service connection and a 10 percent rating for TBI-PTSD because it did not consider the Court's decision in Espiritu. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board finds the Veteran's citation to Espiritu as supporting his CUE appeal to be perplexing and entirely misplaced. The Court held in Espiritu that lay statements submitted in support of a claimant's request to reopen a previously denied service connection claim in the Legacy appeals system must be both new and material and not merely provide a summary of evidence or argument previously addressed by VA when it denied the original service connection claim on the merits. See Espiritu, 2 Vet. App. 492. The Court also held in Espiritu that lay statements, alone, are insufficient to establish a medical diagnosis or other "matter[s] normally regarded to be the province of an expert." Id., at 494-95. The Board does not understand the relevance of Espiritu to the Veteran's claim of CUE in the March 2000 rating decision and his argument as to the relevance of this decision to his CUE claim is not illuminating. As a result, the Board finds that the argument presented by the Veteran regarding the applicability of Espiritu to this CUE appeal is without merit.

With respect to the argument that, but for AOJ CUE in the March 31, 2000, rating decision, the Veteran is entitled to a disability rating greater than 10 percent effective November 1, 1998, for service-connected lumbosacral strain and a 30 percent rating (or higher) effective November 1, 1998, for service-connected TBI-PTSD, the Board again notes that this argument reflects disagreement with how the AOJ weighed the record evidence in that decision. Such argument never rises to the level of a valid CUE claim. The AOJ considered the record evidence as a whole at the time of the March 2000 rating decision challenged in this appeal and concluded that separate 10 percent ratings were appropriate for service-connected lumbosacral strain and service-connected TBI-PTSD. As discussed above, the Board already has found that the AOJ did not commit CUE when it awarded service connection and separate 10 percent ratings effective November 1, 1998, for lumbosacral strain and TBI-PTSD in the March 31, 2000, rating decision. The Board also has rejected the Veteran's multiple allegations of CUE in that rating decision. Thus, the Board finds that the argument concerning entitlement to disability ratings greater than 10 percent for lumbosacral strain or greater than 30 percent for TBI-PTSD based on CUE in the March 2000 rating decision is without merit.

Having reviewed the Veteran's arguments concerning an allegation of CUE in the March 2000 rating decision, the Board finds that they do not rise to the level of a valid CUE claim. These arguments essentially dispute how the AOJ weighed the record evidence at the time of the March 2000 rating decision and never rise to the level of a valid CUE claim.

The Veteran impermissibly asks the Board to disturb the finality of the March 2000 rating decision challenged in this appeal. As noted above, he essentially argues that the AOJ committed CUE in the March 2000 rating decision. He also essentially argues that the AOJ committed CUE in promulgating a Legacy SOC in March 2001. Although the Veteran contends that the AOJ committed CUE in the March 2001 Legacy SOC, the Board again notes that a Legacy SOC is not considered a final rating action which is the subject of a CUE motion. Instead, as noted above, a Legacy SOC provides a summary of the evidence, the applicable laws and regulations for any issue(s) being appealed, and the AOJ's decision
Board to disturb the finality of the March 2000 rating decision challenged in this appeal. As noted above, he essentially argues that the AOJ committed CUE in the March 2000 rating decision. He also essentially argues that the AOJ committed CUE in promulgating a Legacy SOC in March 2001. Although the Veteran contends that the AOJ committed CUE in the March 2001 Legacy SOC, the Board again notes that a Legacy SOC is not considered a final rating action which is the subject of a CUE motion. Instead, as noted above, a Legacy SOC provides a summary of the evidence, the applicable laws and regulations for any issue(s) being appealed, and the AOJ's decision on any issue(s) being appealed. See 38 C.F.R. § 19.29. This invitation to disturb the finality of the March 2000 rating decision also is directly contrary to the well-settled principle of Veterans law that a Veteran cannot collaterally attack a final rating decision by filing a freestanding earlier effective date claim. See Rudd, 20 Vet. App. at 296. It is undisputed that the Veteran did not initiate a timely appeal of the March 2000 rating decision with respect to the award of service connection and a 10 percent rating effective November 1, 1998, for lumbosacral strain. It also is undisputed that the Veteran did not submit a timely substantive Legacy appeal (VA Form 9) following the March 2001 SOC, which included an increased rating claim for TBI-PTSD, so the March 2000 rating decision became final with respect to the award of service connection and a 10 percent rating effective November 1, 1998, for this disability. Having reviewed the record evidence, the Board declines the invitation presented by the Veteran to disturb the finality of the March 2000 rating decision.

Even assuming for the sake of argument only that there was error in the March 31, 2000, rating decision, because it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. In this rating decision, the AOJ considered the available service personnel records, a pre-discharge VA examination in June 1998, and multiple VA examinations in December 1999 which showed that he incurred lumbosacral strain and TBI-PTSD during active service. The AOJ essentially concluded that the symptomatology attributable to each of these disabilities was minimally disabling and assigned separate 10 percent ratings effective November 1, 1998. In other words, the record evidence demonstrates what the AOJ previously concluded in the March 2000 rating decision, i.e., that service connection and separate 10 percent ratings effective November 1, 1998, for lumbosacral strain and TBI-PTSD were appropriate. Thus, it is not absolutely clear that a different result would have ensued under the interpretation advanced by the Veteran in his CUE motion. Because it is not absolutely clear to the Board that a different result would have ensued if the AOJ had weighed the record evidence under the theory advanced by the Veteran in this appeal, any alleged error made by the AOJ in the March 31, 2000, rating decision concerning the award of service connection and separate 10 percent ratings effective November 1, 1998, for lumbosacral strain and for TBI-PTSD is not CUE. And, as noted above, the AOJ's conclusions in the November 6, 2018, rating decision with respect to the award of service connection and separate 10 percent ratings for lumbosacral strain and for TBI-PTSD were fully supported by the available evidence at the time of that decision.

The record evidence does not support finding that the March 31, 2000, rating decision, which granted, in pertinent part, claims of service connection for lumbosacral strain and for depression and assigned separate 10 percent ratings effective November 1, 1998, was the product of CUE. The Veteran otherwise has not identified or submitted any evidence demonstrating that the March 31, 2000, rating decision was the product of CUE. The evidence persuasively weighs against the claims. Therefore, the benefit of the doubt rule does not apply. See Lynch, 21 F.4th 776. In summary, the Board finds that the March 31, 2000, rating decision, which granted, in pertinent part, claims of service connection for lumbosacral strain and for depression and assigned separate 10 percent ratings effective November 1, 1998, was not the product of CUE. The appeal is denied.

1998, was the product of CUE. The Veteran otherwise has not identified or submitted any evidence demonstrating that the March 31, 2000, rating decision was the product of CUE. The evidence persuasively weighs against the claims. Therefore, the benefit of the doubt rule does not apply. See Lynch, 21 F.4th 776. In summary, the Board finds that the March 31, 2000, rating decision, which granted, in pertinent part, claims of service connection for lumbosacral strain and for depression and assigned separate 10 percent ratings effective November 1, 1998, was not the product of CUE. The appeal is denied.

S. Sorathia

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Michael T. Osborne, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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