FLATFOOT BILATERAL ACQUIRED

S. SORATHIA · 2026 · Case ID: A26040491

DENIED

Summary

The veteran, who served in the U.S. Army from August 1989 to September 1995, appealed a supplemental claim decision that denied Clear and Unmistakable Error (CUE) in a prior October 26, 1995, rating decision. The original decision granted service connection for bilateral pes planus (flatfoot) with a 10 percent rating effective September 16, 1995. The veteran and his attorney argued that the original decision committed CUE by misinterpreting the evidence, specifically overlooking findings in the Medical Evaluation Board (MEB) report that allegedly supported a higher rating (30% or 50%) under Diagnostic Code 5276. They also contended that the veteran continuously pursued an increased rating claim, entitling him to an earlier effective date for a 50 percent rating. The Board reviewed the evidence available at the time of the original decision, including the MEB report, service treatment records, and a post-service VA examination. The Board found that the original decision properly considered the available evidence and law, assigning a 10 percent rating based on moderate bilateral pes planus. The Board noted that the MEB report did not contain findings of severe or pronounced deformity required for higher ratings under DC 5276, and the veteran's discharge was based on multiple conditions, not solely pes planus. The Board concluded that the arguments presented constituted a disagreement with how evidence was weighed, which does not meet the stringent definition of CUE. Furthermore, the Board found no evidence of continuous prosecution for an increased rating to warrant an earlier effective date. The appeal was denied.

Rationale

Original decision granted service connection and 10% rating for bilateral pes planus.; Arguments for CUE based on MEB report and higher rating criteria (30% or 50%) were found to be disagreements with evidence weighing, not CUE.; MEB report did not show severe/pronounced deformity required for higher ratings under DC 5276.

Service Branch

ARMY

Special Benefit

EARLIER EFFECTIVE DATE

Diagnostic Code

5276

Docket No.

230306-328380

Full Decision Text

Citation Nr: A26040491
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 230306-328380
DATE: April 30, 2026

ORDER

The October 26, 1995, rating decision, which granted, in pertinent part, a claim of service connection for bilateral pes planus (which was characterized as flatfoot), assigning a 10 percent rating effective September 16, 1995, was not the product of clear and unmistakable error (CUE).

FINDINGS OF FACT

1. The Veteran included his original service connection claim for bilateral pes planus (which he characterized as "painful bilateral pes planus") in statements on a VA Form 21-526, "Veteran's Application For Compensation Or Pension," dated on August 4, 1995, and date-stamped as received by the Agency of Original Jurisdiction (AOJ) on September 25, 1995.

2. In a rating decision dated on October 26, 1995, and issued to the Veteran on October 31, 1995, the AOJ granted, in pertinent part, a claim of service connection for bilateral pes planus (which was characterized as flatfoot), assigning a 10 percent rating effective September 16, 1995; this decision was not appealed and became final.

3. The Veteran, through his attorney, filed a VA Form 20-0995, "Decision Review Request: Supplemental Claim," dated on June 13, 2022, and date-stamped as received electronically by VA that same day and asserted that the October 1995 rating decision was the product of CUE.

4. In the currently appealed AMA rating decision dated on December 27, 2022, and issued to the Veteran and his attorney on January 10, 2023, the AOJ denied his CUE claim.

5. The Veteran, through his attorney, disagreed with the December 2022 rating decision in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on March 6, 2023, and date-stamped as received electronically by VA that same day.

6. Statements regarding the Veteran's entitlement to a 50 percent rating effective September 16, 1995, for bilateral pes planus reflect disagreement with how VA weighed the record evidence in the October 1995 rating decision.

CONCLUSION OF LAW

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active U.S. Army service from August 1989 to September 1995. He also had additional unverified service.

In June 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and asserted that the October 26, 1995, rating decision, which granted, in pertinent part, a claim of service connection for bilateral pes planus (which was characterized as flatfoot), assigning a 10 percent rating effective September 16, 1995, was the product of CUE. In December 2022, the AOJ issued the supplemental claim decision on appeal which denied the Veteran's CUE claim. 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 December 2022 AOJ supplemental claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, then the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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, then VA will issue another decision on the claim considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing
.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, then the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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, then VA will issue another decision on the claim considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that the Veteran's attorney submitted a statement in July 2025 in which she asserted that rating decisions issued in August 2001 and in August 2007 also were the product of CUE. The Board notes that it denied claims of CUE in both of these prior final rating decisions in a decision issued on April 14, 2026, under AMA docket # 230607-354314. These issues will not be addressed further in this decision.

The Veteran and his attorney essentially contend that the AOJ committed CUE in the September 1995 rating decision by misapplying the law and regulations and misinterpreting the extant record evidence. They specifically contend that the AOJ overlooked or ignored certain findings in the Veteran's Medical Evaluation Board (MEB) report when it assigned a 10 percent rating for service-connected bilateral pes planus in the October 1995 rating decision. The Board notes initially that, although the Veteran's service-connected bilateral pes planus initially was characterized as "flatfoot" in the October 1995 rating decision challenged in this CUE appeal, it subsequently was recharacterized as "bilateral pes planus" and will be referred to as "bilateral pes planus" throughout this decision. The Veteran and his attorney also specifically contend that the AOJ misapplied 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276, when it assigned a 10 percent rating for service-connected bilateral pes planus in the October 1995 rating decision. They alternatively contend that, because the Veteran continuously pursued an increased rating claim for service-connected bilateral pes planus since he filed his original service connection claim, he is entitled to an earlier effective date of September 16, 1995, for a 50 percent rating for his service-connected bilateral pes planus. They finally contend that, but for AOJ CUE in the October 1995 rating decision, the Veteran is entitled to a 50 percent rating effective September 16, 1995, for his service-connected bilateral pes planus.

The Board finds, however, that the AOJ properly considered the relevant evidence (the Veteran's available service treatment records, including an MEB report, a post-service VA examination in October 1995, and his lay statements) and governing law and regulations when it granted, in pertinent part, a claim of service connection for bilateral pes planus, assigning a 10 percent rating effective September 16, 1995, in the October 26, 1995, rating decision. The arguments presented by the Veteran and his attorney essentially disagree with how the AOJ weighed the record evidence in the October 26, 1995, rating decision which can never rise to the level of a valid CUE claim.

The Veteran included his original service connection claim for bilateral pes planus (which he characterized as "painful bilateral pes planus") in statements on a VA Form 21-526, "Veteran's Application For Compensation Or Pension," dated on August 4, 1995, and date-stamped as received by the AOJ on September 25, 1995.

In a rating decision dated on October 26, 1995, and issued to the Veteran on October 31, 1995, the AOJ granted, in pertinent part, a claim of service connection for bilateral pes planus (which was characterized as flatfoot), assigning a 10 percent rating effective September 16, 1995. The AOJ essentially found that the Veteran's bilateral pes planus was related directly to active service. The AOJ also essentially found that a 10 percent rating for service-connected bilateral pes planus was warranted because the record evidence showed "the weight-bearing line is over or medial to the great toe with inward bowing of the tendo Achillis and pain on manipulation and use of the feet." The AOJ further found essentially that September 16, 1995, was the appropriate effective date for this award because that was the day after the date of the
part, a claim of service connection for bilateral pes planus (which was characterized as flatfoot), assigning a 10 percent rating effective September 16, 1995. The AOJ essentially found that the Veteran's bilateral pes planus was related directly to active service. The AOJ also essentially found that a 10 percent rating for service-connected bilateral pes planus was warranted because the record evidence showed "the weight-bearing line is over or medial to the great toe with inward bowing of the tendo Achillis and pain on manipulation and use of the feet." The AOJ further found essentially that September 16, 1995, was the appropriate effective date for this award because that was the day after the date of the Veteran's discharge from active service. This decision was not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. He also did not submit any relevant evidence or argument within 1 year of the October 1995 rating decision which would render it non-final for VA adjudication purposes. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).

The Veteran, through his attorney, filed a VA Form 20-0995, "Decision Review Request: Supplemental Claim," dated on June 13, 2022, and date-stamped as received electronically by VA that same day and asserted that the October 1995 rating decision was the product of CUE. They stated:

Earlier effective date of 09/16/1995 for 50% rating bilateral flat feet based on CUE. There is CUE in the October 1996 Rating Decision because the correct facts were not before the RO. The Oct[ober] 1995 decision denied [a] higher rating in part [because] there was no deformity. On the contrary, Vet underwent a MEB...and was separated from service due to the severity of his feet and the fact that he had marked deformity. The VA also misapplied 38 C.F.R. § 4.71a. In line with 38 C.F.R. § 4.71a and the 50% criteria, Vet's MEB...shows bilateral pronounced symptoms of pain unimproved by orthotic shoes. The MEB MD opined that Vet underwent all conservative treatment options with no relief. MEB podiatrist noted marked deformity (planovalgus). [Service treatment records] show [history of] pain and swelling. Thus, Vet met the criteria for 50% as early as 1995.

The Veteran and his attorney attached a VA Form 21-4138, "Statement In Support Of Claim," to the June 2022 VA Form 20-0995. They asserted:

With regard to the CUE claim for bilateral flat feet, another basis for an earlier effective date for a 50% rating is the fact that [the] Veteran continuously prosecuted an appeal for a higher rating since his initial claim on 09/25/1995....Vet[eran] filed a claim for increase on 01/16/2007 with new and material evidence and a claim for increased on 09/18/2000 as well. Veteran has consistently submitted new and material evidence since his initial claim on 09/25/1995....[Service treatment records] and VA treatment records from that time demonstrate Vet[eran] had marked deformity (planovalgus and pronated feet); a C&P exam from August 2000 confirm also showed [sic]...feet pronated bilaterally and that the arches totally disappeared when he walked. [Service treatment records] showed Vet[eran] complained of swelling and tenderness was noted upon palpation to the arch. The doctors did not evaluate for calluses....[Service treatment records] show that orthotics and conservative treatment never improved Vet[eran]'s symptoms. It is why he was separated from the military. None of these facts were considered by the VA. Thus, CUE has occurred.

In the currently appealed AMA rating decision dated on December 27, 2022, and issued to the Veteran and his attorney on January 10, 2023, the AOJ denied his CUE claim. The AOJ noted that it awarded service connection and a 10 percent rating for bilateral pes planus in the October 1995 rating decision "based on VA exam findings at that time." The AOJ stated, "You were notified of this decision by our letter dated October 31, 1995. As no claim was received within one year of the date of said notification letter
why he was separated from the military. None of these facts were considered by the VA. Thus, CUE has occurred.

In the currently appealed AMA rating decision dated on December 27, 2022, and issued to the Veteran and his attorney on January 10, 2023, the AOJ denied his CUE claim. The AOJ noted that it awarded service connection and a 10 percent rating for bilateral pes planus in the October 1995 rating decision "based on VA exam findings at that time." The AOJ stated, "You were notified of this decision by our letter dated October 31, 1995. As no claim was received within one year of the date of said notification letter, the issue was finally adjudicated effective October 31, 1996 and has not been continuously pursued since that time." The AOJ then explained that this claim was not continuously prosecuted because nothing was received from the Veteran within 1 year of any prior final rating decision which addressed his bilateral pes planus.

The Veteran, through his attorney, disagreed with the December 2022 rating decision in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on March 6, 2023, and date-stamped as received electronically by VA that same day. They stated on this form:

Earlier effective date for 50% bilateral flat feet based upon a continuously prosecuted claim since 9/25/1995, and also [CUE]. The Veteran is entitled to a 50% rating from his date of discharge as he was med boarded out of the military for his feet and the evidence shows he met the criteria for a 50% rating at that time.

In July 2025, the Veteran's attorney submitted a statement in support of this appeal. She repeated the arguments previously presented concerning an assertion of CUE in the October 1995 rating decision. She also argued that the extant record evidence, to include the MEB report, contained findings which supported assigning a 30 percent rating for the Veteran's service-connected bilateral pes planus in the October 1995 rating decision. She further argued that VA examinations dated in August 2000 and in March 2006 supported assigning "a higher rating" for this disability in the October 1995 rating decision. She asserted:

The evidence required for that rating was not only present but explicitly documented in the Veteran's [MEB report], subsequent C&P exams, and service treatment records. This error was not a disagreement in interpretation; it was a misapplication of clearly applicable law to unambiguous facts, and thus qualifies as CUE under 38 C.F.R. § 3.105(a)....The evidence of record at the time clearly met the criteria for a...higher evaluation under DC 5276. The VA failed to properly apply the rating criteria to the Veteran's in-service medical evidence, including [an MEB report] that found his condition severe enough to warrant separation.

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.

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. Id.; see also Luallen, 8 Vet. App. at 96.

With respect to the argument that the AOJ committed CUE in the October 1995 rating decision by misinterpreting the extant record evidence and misapplying the governing law and regulations by granting, in pertinent part, a claim of service connection for bilateral pes planus and assigning a 10 percent rating effective September 16, 1995, the Board notes initially that this argument reflects disagreement with how VA weighed the evidence. Such argument never rises to the level of a valid CUE claim. The Veteran and his attorney argued in the CUE motion that the AOJ erred when it did not assign a disability rating greater than 10 percent for the service-connected bilateral pes planus in the October 1995 rating decision. They presented argument during the appeal period that the appropriate disability rating for this disability was either 30 percent or 50 percent under DC 5276. See 38 C.F.R. § 4.71a, DC 5276. They specifically argued that the AOJ overlooked relevant evidence (here, the MEB report in the available service treatment records) demonstrating that the symptomatology attributable to the Veteran's service-connected bilateral pes planus was either severe (supporting a 30 percent rating under DC 5276) or pronounced (supporting a 50 percent rating under DC 5276). Id. They also specifically argued that the AOJ committed CUE by assigning a 10 percent rating effective September 16, 1995, for the Veteran's service-connected bilateral pes planus. These arguments are not persuasive.

A review of the October 1995 rating decision shows that the AOJ did not misinterpret the extant record evidence and also properly applied the governing law and regulations when it granted service connection for bilateral pes planus and assigned a 10 percent rating effective September 16, 1995. The AOJ noted that the evidence reviewed in this rating decision included the Veteran's available service treatment records and VA examination in October 1995. The AOJ found that the record evidence established an etiological link between the Veteran's bilateral pes planus and his active service. The AOJ essentially found that a 10 percent rating effective September 16, 1995, for this disability was appropriate because the record evidence showed moderate bilateral pes planus when "the weight-bearing line is over or medial to the great toe with inward bowing of the tendo Achillis and pain on manipulation and use of the feet." The AOJ also essentially found that a higher 30 percent rating was not appropriate for the Veteran's service-connected bilateral pes planus because there was no evidence of "marked deformity (pronation, abduction, etc), pain on manipulation and use, swelling on use, and characteristic callosities."

The AOJ's findings in the October 1995 rating decision are supported by a review of the extant record evidence. A podiatry consult dated in January 1995 documented the Veteran's complaints of "pain with marching, running, jumping, and standing for prolonged periods of time." Physical examination showed a mild valgus stance position, 2/4 podiatric pulses, 5/5 muscle strength, and normal reflexes. "X-ray demonstrates an anterior breach to the cyma line and a low calcaneal inclination ankle bilaterally which is indicative of pes planus." The diagnosis was pes planus, aggravated. The Veteran received the following duty restrictions: no running or marching up to 2 miles, no jumping, and no standing for prolonged periods of time (over 15 minutes). The in-service podiatrist stated:

This service member is unable to perform the duties expected of a member of his rank and station. Due to his chronic foot discomfort, he would not only jeopardize himself but also his unit in a battlefield situation. He has difficulty in running, marching, jumping, and long standing, precluding him from guard duty, field duty, road marches, and physical fitness training, without affecting the readiness of his unit. He has reached maximum improvement with the previous treatment and further treatment is not indicated at this time.

The podiatrist recommended a referral to the Physical Evaluation Board (PEB).

A review of the Veteran's MEB report, dated in May 1995 and included in his available service treatment records, shows that he was diagnosed as having painful bilateral pes planus, unresponsive to conservative treatment, which existed prior to active service and was permanently aggravated by service. A narrative report dated in April 1995 and completed as part of the Veteran's MEB showed that his complaints included "pain with marching, running, jumping, and standing for prolonged periods of time. He was seen by Podiatry and treated with decreased activity profiles, orthotic devices, and several follow-up appointments, all without improvement of his symptoms." Physical examination of his feet showed bilateral planovalgus feet which "are flexible and his arch corrects when he is on his toes" and normal sensation. X-rays of the feet showed "an anterior breach of the cyma line and a low calcaneal inclination angle bilaterally indicative of pes planus." The diagnoses included painful bilateral pes planus unresponsive to conservative treatment.

In a statement dated on May 18, 1995, labeled "Appeal To Medical Evaluation Board," and included in the claims file, the Veteran disagreed with the MEB report. He stated that he could not "march up to 2 miles, swim, [and] do push-ups and sit-ups" as a result of his right costochondritis. He also stated, "If I tried to perform push-ups, I would have put such extreme pressure on my...feet so that I could not continue."

On VA examination in October 1995, the Veteran's complaints included bilateral foot pain "if he walks any long distance." The VA examiner stated that the Veteran "does wear orthotic supports which help him substantially." A history of flat feet was reported. The diagnoses included pes planus "per examination and history."

The Veteran and his attorney specifically contend in the CUE motion that the MEB report contained findings which support assigning either a 30 percent or a 50 percent rating effective September 16
sit-ups" as a result of his right costochondritis. He also stated, "If I tried to perform push-ups, I would have put such extreme pressure on my...feet so that I could not continue."

The Veteran and his attorney specifically contend in the CUE motion that the MEB report contained findings which support assigning either a 30 percent or a 50 percent rating effective September 16, 1995, for the service-connected bilateral pes planus. They highlight the presence of planovalgus and pronated feet on the MEB report and contend that these findings show that the Veteran experienced marked deformity due to his service-connected bilateral pes planus. They also contend that, because the Veteran was discharged from active service due to the severity of his bilateral pes planus, he is entitled to a disability rating greater than 10 percent for this service-connected disability and the AOJ's failure to assign a higher rating in the October 1995 rating decision was CUE. In presenting these arguments alleging CUE in the October 1995 rating decision, the Veteran and his attorney either misread or misunderstand the MEB report. More importantly, these arguments do not provide a basis for finding that the October 1995 rating decision was the product of CUE.

Contrary to the arguments presented by the Veteran's attorney in the CUE motion, there is no indication anywhere in the MEB report that the Veteran was discharged from active service solely as a result of his bilateral pes planus. This report clearly shows instead that his discharge was based on both bilateral pes planus and right-sided patella dislocation resulting in patellofemoral pain syndrome secondary to chondromalacia of the patella. Physical examinations completed as part of the Veteran's MEB process also documented his complaints of costochondritis although this disability did not prompt his discharge from active service. The Veteran's attorney assumes for the purpose of arguing that the October 1995 rating decision was the product of CUE that, because the MEB report documented bilateral pes planus, this disability alone prompted the Veteran's discharge from active service. This assumption is not supported by a review of the extant record evidence. The MEB report concluded that both the Veteran's bilateral pes planus and his right-sided patella dislocation resulting in patellofemoral pain syndrome secondary to chondromalacia of the patella were medically unacceptable and disqualified him from further active service. The Veteran and his attorney essentially assume for the purposes of arguing that the AOJ committed CUE in the October 1995 rating decision that VA overlooked relevant evidence (here, certain findings in the MEB report) 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), and Newhouse v. Nicholson, 497 F.3d 1298 (2007) (finding that VA is entitled to a presumption that it reviewed all of the record evidence).

With respect to the argument that the AOJ committed CUE in the October 1995 rating decision when it misapplied 38 C.F.R. § 4.71a, DC 5276, and awarded service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus, the Board again notes initially that this argument reflects disagreement with how VA weighed the evidence. Such argument never rises to the level of a valid CUE claim. The Veteran and his attorney argued in the CUE motion that the AOJ misapplied 38 C.F.R. § 4.71a, DC 5276, when it assigned a 10 percent rating effective September 16, 1995, for his service-connected bilateral pes planus. They specifically contend that certain findings in the MEB supported assigning either a 30 percent or a 50 percent rating for this disability under DC 5276. See 38 C.F.R. § 4.71a, DC 5276. This argument is not persuasive. There is no indication anywhere in the MEB report that the Veteran experienced severe or pronounced bilateral pes planus as is required for a 30 percent or 50 percent rating under DC 5276. Id. The M
38 C.F.R. § 4.71a, DC 5276, when it assigned a 10 percent rating effective September 16, 1995, for his service-connected bilateral pes planus. They specifically contend that certain findings in the MEB supported assigning either a 30 percent or a 50 percent rating for this disability under DC 5276. See 38 C.F.R. § 4.71a, DC 5276. This argument is not persuasive. There is no indication anywhere in the MEB report that the Veteran experienced severe or pronounced bilateral pes planus as is required for a 30 percent or 50 percent rating under DC 5276. Id. The MEB report did not contain findings of objective evidence of either marked deformity (or severe bilateral pes planus) or pronounced bilateral pes planus. Instead, this report documented the Veteran's "chronic foot discomfort," 5/5 muscle strength, normal reflexes and sensation, and bilateral planovalgus feet which "are flexible and his arch corrects when he is on his toes." The Board acknowledges here that the MEB report found that the Veteran's bilateral pes planus did not respond to conservative treatment; however, this finding does not equate to a 50 percent rating under DC 5276. Id. DC 5276 provides instead that a Veteran may be awarded a 50 percent rating for pronounced flatfoot (or pes planus) manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation not improved by orthopedic shoes or appliances. Again, the findings contained in the MEB report do not indicate that the Veteran had pronounced symptoms of bilateral pes planus which did not respond to conservative treatment. In other words, the fact that his bilateral pes planus did not respond to conservative treatment during active service does not automatically entitle him to a 50 percent rating for this disability under DC 5276. Id. The Veteran and his attorney again essentially assume for the purposes of arguing that the AOJ committed CUE in the October 1995 rating decision that VA overlooked relevant evidence (here, certain findings in the MEB report) because it was not discussed explicitly in that rating decision. This assumption does not constitute a valid CUE claim. See, for example, Timberlake, 14 Vet. App. at 122, and Newhouse, 497 F.3d at 1298. Having reviewed the record evidence, the Board finds that the AOJ appropriately interpreted the extant medical evidence, to include the Veteran's MEB report, and correctly applied the governing law and regulations, to include 38 C.F.R. § 4.71a, DC 5276, in the October 1995 rating decision when it awarded service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus.

The Veteran and his attorney alternatively contend that, because he continuously prosecuted an increased rating claim for service-connected bilateral pes planus since he filed his original service connection claim, he is entitled to an earlier effective date of September 16, 1995, for a 50 percent rating for his service-connected bilateral pes planus. In statements on the June 2022 VA Form 21-4138 attached to the Veteran's CUE claim, they asserted, "With regard to the CUE claim for bilateral flat feet, another basis for an earlier effective date for a 50% rating is the fact that the Veteran continuously prosecuted an appeal for a higher rating since his initial claim on 9/25/1995."

Rather, it is undisputed that the AOJ granted, in pertinent part, service connection for bilateral pes planus, assigning a 10 percent rating effective September 16, 1995, in the October 26, 1995, rating decision challenged in this CUE appeal. As noted above, the October 1995 rating decision was not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. As also noted above, the Veteran did not submit any relevant evidence or argument within 1 year of the October 1995 rating decision which would render it non-final for VA adjudication purposes. See Buie, 24 Vet. App. at 251-52.

The AOJ stated in the currently appealed AMA rating decision issued in December 2022 that the October 1995 rating decision became final 1 year after the October 26, 1995, rating decision was issued on October 31, 1995, or on October 31, 1996.
38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. As also noted above, the Veteran did not submit any relevant evidence or argument within 1 year of the October 1995 rating decision which would render it non-final for VA adjudication purposes. See Buie, 24 Vet. App. at 251-52.

The AOJ stated in the currently appealed AMA rating decision issued in December 2022 that the October 1995 rating decision became final 1 year after the October 26, 1995, rating decision was issued on October 31, 1995, or on October 31, 1996. The AOJ also outlined in detail in the December 2022 AMA rating decision the prior procedural history of other finally adjudicated increased rating claims for bilateral pes planus received between October 1996 when the October 1995 rating decision became final and June 2022 when the Veteran and his attorney filed the currently appealed CUE claim. The Board will not repeat that detailed procedural history except as discussed here. The record evidence shows that, after the October 1995 rating decision became final, the Veteran next corresponded with VA in July 2000, or nearly 5 years later, when he submitted several informal increased rating claims and requested readjudication. There is zero support in the claims file that any claim adjudicated in the October 1995 rating decision challenged in this CUE appeal, to include the award of service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus was pursued continuously since that time.

The Court has held consistently 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. See Ater v. McDonough, No. 23-2583 (Vet. App. Sept. 16, 2024). Here, the Veteran and his attorney assert entitlement to an earlier effective date and an allegation of CUE in the same rating decision. 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. Id. The Court recently reaffirmed in Callahan that adjudication of an earlier effective date claim was not also a denial of a CUE claim because the two issues are separate and adjudicated under different legal standards. See Callahan v. Collins, No. 24-5863 (Vet. App. Dec. 15, 2025). The Board notes in this regard that it is well-settled 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). Having reviewed the record evidence, the Board finds that the Veteran did not pursue continuously an increased rating claim for service-connected bilateral pes planus and any argument to the contrary is without merit.

The Veteran and his attorney also alternatively contend that medical evidence associated with the claims file after the October 1995 rating decision became final, to include VA examinations in March 2000 and in August 2006, supports assigning a disability rating greater than 10 percent effective September 16, 1995, for service-connected bilateral pes planus. The Court has held consistently that 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. See Damrel, 6 Vet. App. at 245 (emphasis added). The Veteran and his attorney specifically cite an August 2000 VA examination in the June 2022 VA Form 21-4138 as support for finding that the 10 percent rating assigned for service-connected bilateral pes planus in the October 1995 rating decision was CUE. They also specifically cite a March 2006 VA examination in the July 2025 submission as support for finding that the disability rating assigned for service-connected bilateral pes planus in the October 1995 rating decision was CUE. Neither the August 2000 nor March 2006 VA examinations could have been considered at the time of the October 1995 rating decision because they did not exist at that time and would not exist until approximately 5 years and 9 years later, respectively. And neither of these examinations provide a basis for finding CUE in the October 1995 rating decision because they were not part of the record which existed at the time of this rating decision. Having reviewed the record evidence, the Board finds that the argument
specifically cite a March 2006 VA examination in the July 2025 submission as support for finding that the disability rating assigned for service-connected bilateral pes planus in the October 1995 rating decision was CUE. Neither the August 2000 nor March 2006 VA examinations could have been considered at the time of the October 1995 rating decision because they did not exist at that time and would not exist until approximately 5 years and 9 years later, respectively. And neither of these examinations provide a basis for finding CUE in the October 1995 rating decision because they were not part of the record which existed at the time of this rating decision. Having reviewed the record evidence, the Board finds that the argument that VA examinations in August 2000 and March 2006 support assigning a disability rating greater than 10 percent for service-connected bilateral pes planus in the October 1995 rating decision is without merit.

With respect to the argument that, but for AOJ CUE in the October 1995, the Veteran is entitled to a 50 percent rating effective September 16, 1995, for his service-connected bilateral pes planus, the Board again notes that this argument reflects a disagreement with how the AOJ weighed the record evidence in that decision. The Board already has found that the Veteran was not entitled to an a 50 percent rating effective September 16, 1995, for his service-connected bilateral pes planus in the October 1995 rating decision under 38 C.F.R. § 4.71a, DC 5276 (as discussed above). The AOJ considered the record evidence as a whole at the time of the October 1995 rating decision and found that service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus was warranted based on the extant record evidence showing the Veteran's moderate symptomatology. The AOJ reached the same conclusions in the currently appealed December 2022 AMA rating decision which found that there was no CUE in the October 1995 rating decision. The findings in the December 2022 AMA rating decision are in accord with the AOJ's prior findings in the October 1995 rating decision which found that the Veteran's bilateral pes planus was related to active service and resulted in moderate bilateral pes planus. And, as discussed above, the AOJ's original grant of service connection for bilateral pes planus, evaluated as 10 percent rating effective September 16, 1995, was supported by the extant record evidence at the time of the October 1995 rating decision.

Having reviewed the Veteran's arguments concerning an allegation of CUE in the October 1995 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 this rating decision and never rise to the level of a valid CUE claim.

Even assuming for the sake of argument only that there was error in the October 26, 1995, rating decision, because it is not absolutely clear that a different result would have ensued, the error(s) complained of cannot be CUE. Again, the AOJ granted service connection for bilateral pes planus, assigning a 10 percent rating effective September 6, 1995, in the October 1995 rating decision. The AOJ considered the available medical evidence (service treatment records and VA examination dated in October 2005) which showed that the Veteran's bilateral pes planus was related to active service and resulted in moderately disabling symptoms. The AOJ also found that September 16, 1995, was the appropriate effective date for the award of service connection and a 10 percent rating for bilateral pes planus because that was the day after the Veteran's discharge from active service. In other words, the record evidence demonstrates what the AOJ previously concluded in the October 1995 rating decision, i.e., that service connection for bilateral pes planus and a 10 percent rating effective September 16, 1995, was warranted. Thus, it is not absolutely clear that a different result would have ensued at the time of the October 1995 rating decision 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 weighed the record evidence under the theory advanced by the Veteran in this appeal, any alleged error(s) made by the AOJ in the October 26, 1995, rating decision in awarding service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus was not CUE. And, as noted above, the AOJ's conclusions in the October 1995 rating decision challenged in
. Thus, it is not absolutely clear that a different result would have ensued at the time of the October 1995 rating decision 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 weighed the record evidence under the theory advanced by the Veteran in this appeal, any alleged error(s) made by the AOJ in the October 26, 1995, rating decision in awarding service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus was not CUE. And, as noted above, the AOJ's conclusions in the October 1995 rating decision challenged in this CUE appeal with respect to the award of service connection and a 10 percent rating for bilateral pes planus were fully supported by the available evidence at the time of this decision.

The record evidence does not support finding that the October 26, 1995, rating decision, which awarded service connection and a 10 percent rating effective September 16, 1995, for bilateral pes planus, was the product of CUE. The Veteran and his attorney otherwise have not identified or submitted any evidence demonstrating that this 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 26, 1995, rating decision, which granted, in pertinent part, service connection for bilateral pes planus and assigned a 10 percent rating effective September 16, 1995, 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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