Citation Nr: 0935953 Decision Date: 09/23/09 Archive Date: 10/02/09 DOCKET NO. 07-16 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE 1. Whether there was clear and unmistakable error (CUE) in a March 1999 rating decision that assigned a 30 percent disability rating for asthma. 2. Entitlement to an effective date prior to October 13, 2005, for a 60 percent evaluation for asthma. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The Veteran had active service from November 1984 to May 1985 and from October 1996 to February 1998. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which increased the disability evaluation for service-connected asthma to 60 percent, effective October 13, 2005. The Veteran disagreed with the effective date and the RO construed his disagreement to include a claim of CUE in the initial March 1999 rating decision. Although the RO considered the issues as one, for clarity the Board will adjudicate them separately. In his May 2007 Substantive Appeal, the Veteran indicated that he desired a hearing before the Board. In a February 2008 correspondence, he withdrew his request. As no other hearing requests remain pending, the Board may proceed to adjudicate the claim. FINDINGS OF FACT 1. A March 1999 rating decision granted service connection for asthma and assigned an initial evaluation of 30 percent. The Veteran did not appeal. 2. The March 1999 rating decision assigning a 30 percent rating for asthma was reasonably supported by the evidence of record and consistent with legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. 3. Prior to October 13, 2005, the Veteran's asthma was not manifested by FEV-1 of 40- to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. The rating decision of March 1999 is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2008). 2. The March 1999 rating decision that assigned a 30 percent disability rating for asthma was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105 (2008). 3. Prior to October 13, 2005, the criteria for a disability evaluation greater than 30 percent for asthma are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.97, Diagnostic Code 6602 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As a preliminary matter, the Board notes that the notice and development provisions set forth in provisions set forth in 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159 do not apply in CUE adjudications. See Livesay v. Principi, 15 Vet. App. 165 (2001). For an increased-rating claim, the United States Court of Appeals for Veterans Claims (Court) has previously held that VA must, at a minimum, notify a claimant that, (1) to substantiate an increased-rating claim, the evidence must demonstrate "a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life" and (2) that if an increase in the disability is found, the rating will be assigned by applying the relevant Diagnostic Codes (DC) based on "the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life." The notice must also provide examples of the types of medical and lay evidence that may be obtained or submitted. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). This holding has recently been vacated by the United States Court of Appeals for the Federal Circuit in Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009). The Veteran's May 2005 claim for an increased rating for service-connected asthma was submitted in response to a series of rating actions initiated by the RO, and proper preadjudication notice was not sent. Although appropriate notice was not sent, the record reflects that the purpose of the notice was not frustrated. Vazquez-Flores, 22 Vet. App. at 49. The February 2006 rating decision described the criteria for the next higher disability rating available for asthma under the applicable diagnostic code, and an August 2006 letter explained how VA determines disability ratings and effective dates. The April 2007 statement of the case provided the appellant with the applicable regulations relating to disability ratings for his service-connected asthma, as well as the requirements for an extraschedular rating under 38 C.F.R. § 3.321(b). Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. VA has obtained service treatment records and afforded the appellant physical examinations to assess the severity of his service-connected disability. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Clear and Unmistakable Error Service connection for asthma was awarded in a March 1999 rating decision, and an initial evaluation of 30 percent was assigned, effective February 19, 1998, the first day after the Veteran's separation from service. The Veteran did not appeal, and the decision became final at the end of the statutory time period. 38 C.F.R. § 3.105. The Veteran alleges that there was CUE in that decision in that his asthma symptoms clearly warranted a 60 percent evaluation. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions on the assignment of disability ratings, will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied. The alleged error must have been based upon the evidence of record at the time of the original decision. See Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (citations omitted). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome. A determination that there was CUE must be based on the evidence and the law as they existed at the time of the prior adjudication in question. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Final RO decisions are entitled to a presumption of validity. The party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error. Berger v. Brown, 10 Vet. App. 166 (1997). This burden is not satisfied by the mere assertion that the decision contained CUE; instead, the party must describe the alleged error "with some degree of specificity" and must provide persuasive reasons "as to why the result would have been manifestly different but for the alleged error." It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). The laws and regulations in effect at the time of the March 1999 rating determination allowed a 30 percent rating for asthma where there was FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti- inflammatory medication. A 60 percent rating was for assignment for FEV-1 of 40- to 55-percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1998). At the time of the March 1999 rating decision, the evidence included the Veteran's service treatment records. These records reflect that during a March 17, 1997 pulmonary function test (PFT), the Veteran had FEV-1 of 97 percent predicted and FEV-1/FVC of 82 percent. Another PFT was administered on March 24, 1997, at which time the Veteran had FEV-1 of 77 percent predicted. In March and May, 1997, the Veteran was prescribed prednisone for 8 days and 5 days, respectively, and an April 1997 treatment record notes that the Veteran was "currently on oral prednisone." In June 1997, the Veteran's FEV-1 was 86 percent predicted and FEV- 1/FVC was 81 percent. A PFT administered in August 1997 measured FEV-1 of 77 percent predicted and FEV-1/FVC of 81 percent. A note in the record indicates that the Veteran had stopped using Azmacort on a regular basis. In a September 1997 PFT, the Veteran had FEV-1 of 77 percent predicted and FEV-1/FVC of 82 percent. The evidence of record in March 1999 also included the report of a VA respiratory examination performed in February 1999. During this examination, FEV-1 was 88 percent predicted and FEV-1/FVC was 77 percent. The Veteran reported using inhalers on a daily basis. On examination, there was expiratory wheezing. There was no reference to systemic corticosteroid use, and the examiner stated that the Veteran had had no specific treatment for asthma since his discharge. The Board finds that the March 1999 rating decision does not contain CUE. The evidence does not show that the Veteran had FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent at any time during the rating period. Although the evidence does show that he made frequent visits to a physician and had 3 courses of steroids between March and May 1997, there is no indication that this level of treatment continued beyond the period of initial diagnosis of asthma. As noted, the February 1999 examination report expressly states that he did not receive any treatment for asthma after separation. Based on these findings, the RO could reasonably conclude the asthma was no worse than 30 percent disabling. Therefore, the RO's determination that the Veteran did not meet the criteria for a 60 percent rating was not clearly and unmistakable erroneous and the assignment of a 30 percent rating in the March 1999 rating decision was appropriate. The Veteran and his representative argue, in essence, that the RO evaluated the facts incorrectly in assigning his initial rating. A disagreement with how the RO evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92 (1995). Such a contention does not amount to a valid claim of clear and unmistakable error. Baldwin v. West, 13 Vet. App. 1 (1999). The Veteran has not otherwise pointed the Board toward any other errors which would constitute clear and unmistakable error as defined at 38 C.F.R. § 3.105(a). The Veteran contends that the RO erred in assigning a 30 percent rating even though the February 1999 VA examination report indicated that he was treated with inhalational corticosteroids during and after service. He asserts that "parenteral" is defined as "administered by means other than through the alimentary tract." Thus, he argues, his use of inhalational corticosteroids is parenteral and constitutes systemic corticosteroid treatment consistent with a 60 percent rating. He has submitted copies of Internet articles which identify Azmacort as a corticosteroid and explain that inhalation is regarded as a parenteral form of administration of some medications. Evidence that was not of record at the time of the decision cannot be used to determine whether CUE occurred. Porter v. Brown, 5 Vet. App. 233 (1993). The Board concludes that the correct facts, as known at the time, were before VA adjudicators at the time of the March 1999 rating decision and that the statutory and regulatory provisions extant at the time were correctly applied. The RO weighed the facts which could be supported by the record, and the decision was not the product of CUE. The Board finds that there was no error which was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Earlier Effective Date The Veteran is seeking an effective date prior to October 13, 2005, for the 60 percent rating for asthma. Historically, in a March 1999 rating decision, the RO granted service connection and awarded a 30 percent rating for asthma, effective February 19, 1998, and the Veteran did not appeal. Rating decisions in June 2000 and January 2001 continued the 30 percent evaluation. The Veteran did not appeal, and the January 2001 decision became final at the end of the statutory period. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The effect of that finality is to preclude an award of an effective date of an increased rating prior to that denial. The present case arises from a series of rating actions initiated by the RO. In an October 2004 rating decision, the RO proposed to reduce the rating to 0 percent and in a February 2005 decision, the rating was reduced to 0 percent, effective from May 1, 2005. In his response to these actions, the Veteran submitted a letter in May 2005, in which he stated that his condition had worsened. For the purpose of this adjudication, the Board accepts the May 2005 letter as the Veteran's claim for an increased rating for asthma. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o). In this case, there is no medical evidence of record dated within one year prior to the Veteran's May 2005 claim for an increased rating. The medical evidence pertinent to the time period on appeal consists of a report of a VA respiratory examination in June 2005. The Veteran stated that the only medication he was taking at that time was Primatene, since his prescription medications had run out two months earlier. He had significant shortness of breath with exertion, as well as chest pain and tightness and frequent cough. He reported that he had been seen in the emergency room 3 to 4 times in the past three years, and he had last used steroids in 2003. The PFT revealed FEV-1 of 86 percent predicted and FVC of 82 percent. A 60 percent rating is warranted for bronchial asthma where there is FEV-1 of 40- to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2008). Based on the foregoing evidence, the Board finds that the Veteran's service-connected asthma did not manifest symptomatology consistent with a 60 percent rating prior to October 13, 2005. Accordingly, the claim for an earlier effective date is denied. ORDER The claim to revise the March 1999 rating decision on the grounds of CUE is denied. An effective date prior to October 13, 2005, for a 60 percent rating for asthma is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs