Citation Nr: 0813314 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-02 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right hip disability, including as secondary to service-connected disabilities. 2. Entitlement to service connection for a gastrointestinal disability, including as secondary to service-connected disabilities. 3. Entitlement to service connection for hypertension, including as secondary to service-connected disabilities. 4. Entitlement to service connection for a right foot disability, including as secondary to service-connected disabilities. 5. Entitlement to service connection for a right leg disability, including as secondary to service-connected disabilities. 6. Entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD). 7. Whether a November 10, 1981 rating decision, which denied service connection for a low back disability, was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney at Law ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from November 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Lincoln, Nebraska. An April 2005 rating decision denied the veteran's claims of entitlement to service connection for a right foot disability and for a right leg disability, as well as granted the veteran's claim of entitlement to service connection for PTSD, and assigned a 30 percent disability evaluation, effective January 24, 2005. A May 2005 rating decision denied the veteran's claims of entitlement to service connection for a right foot disability and a right leg disability, including as secondary to the veteran's service- connected shell fragment wound of the mid back with injury of muscle group XX. A March 2006 rating decision denied the veteran's claims of entitlement to service connection for a right hip disability, a gastrointestinal disability, and hypertension, including as secondary to service-connected disabilities. The March 2006 rating decision also concluded that clear and unmistakable error (CUE) was not present in a rating decision, dated in November 1981, denying the veteran's claim of entitlement to service connection for a low back disability. FINDINGS OF FACT 1. There is no competent medical nexus evidence of record indicating the veteran's right hip disability is causally or etiologically related to his service in the military or a service-connected disability. 2. There is no competent medical nexus evidence of record indicating the veteran's gastrointestinal disability is causally or etiologically related to his service in the military or a service-connected disability. 3. There is no competent medical nexus evidence of record indicating the veteran's hypertension is causally or etiologically related to his service in the military or a service-connected disability. 4. There is no competent medical nexus evidence of record indicating the veteran's right foot disability is causally or etiologically related to his service in the military or a service-connected disability. 5. There is no competent medical nexus evidence of record indicating the veteran's right leg disability is causally or etiologically related to his service in the military or a service-connected disability. 6. The veteran's PTSD is manifested by anxiety, depression, and nightmares, but does not cause occupational and social impairment due to impaired speech; difficulty in understanding complex commands; memory impairment; impaired thought processes; or panic attacks. There also are no objective clinical indications of suicidal or homicidal ideations or hallucinations or delusions. 7. In a November 1981 rating decision, the RO denied service connection for a low back disability, and the veteran did not appeal. 8. The November 1981 rating decision was adequately supported by the evidence of record at that time and was consistent with the laws and regulations then in effect; the decision was not egregious or fatally flawed. 9. There is no undebatable error of fact or law in the November 1981 rating action that would change the outcome. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 2. A gastrointestinal disability was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 3. Hypertension was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 4. A right foot disability was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 5. A right leg disability was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 6. The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2007). 7. The November 1981 rating decision, which did not grant service connection for the veteran's low back disability, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2007); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection and an Increased Disability Evaluation Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As the April 2005 rating decision on appeal granted the veteran's claim of entitlement to service connection for PTSD, such claim is now substantiated. As such, his filing of a notice of disagreement as to this determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC) and supplemental statements of the case (SSOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes (DC) for the veteran's PTSD, and included a description of the rating formulas for all possible schedular ratings under the relevant diagnostic code. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the disability evaluation that the RO had assigned. In addition, October 2004, February 2005, August 2005, and May 2006 VCAA letters explained the evidence necessary to substantiate his claims of entitlement to service connection. These letters also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. Further, a March 2006 VCAA letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. According to Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008), for an increased- compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudice. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to show that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. The claimant demonstrated that there was actual knowledge of what was needed to establish the claims. Actual knowledge is established by statements by the claimant and the claimant's representative that demonstrate an awareness of what was necessary to substantiate his claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) ; see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decisions that are the basis of this appeal were decided after the issuance of an initial, appropriate VCAA notices. As such, there was no defect with respect to timing of the VCAA notices. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record for the time period at issue but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Service Connection - In General A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Secondary Service Connection Service connection may be granted, as well, for a disability that is proximately due to, the result of, or aggravated by, a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). But medical evidence is required to show this secondary cause-and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, secondary service connection is permitted for aggravation of a nonservice-connected disability caused by a service-connected condition. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (". . . when aggravation of a veteran's non-service- connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability . . . over and above the degree of disability existing prior to the aggravation."). Increased Disability Evaluations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schrafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal. Analysis Service Connection Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for a right hip disability, a gastrointestinal disability, hypertension, a right foot disability, and a right leg disability, to include as secondary to his service-connected disabilities, so these claims must be denied. 38 C.F.R. § 3.102. The service medical records do not show that the veteran complained of, or was treated for, a right hip disability, a gastrointestinal disability, hypertension, a right foot disability, or a right leg disability during his military service. Moreover, the veteran's January 1970 separation examination report was normal, with a normal clinical evaluation of the heart, vascular system, abdomen, endocrine system, extremities, feet, and musculoskeletal system. The Board also notes that it appears that the veteran did not make any related complaints at this examination. This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incidents in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). It stands to reason that, if he indeed had any problems at or immediately following his discharge from service, as he is now alleging, then he would have at least mentioned this during his January 1970 separation examination. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). In addition, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). In particular, the veteran's right hip disability, gastrointestinal disability, hypertension, right foot disability, and right leg disability were not manifested or diagnosed within the one-year presumptive period following his discharge from service in January 1970. Likewise, his March 1972 VA examination was normal. Instead, it appears that the veteran was not treated for a gastrointestinal disability until 1986, right leg complaints until 1990, right hip complaints until 2001, hypertension until 2004, and a right foot disability also was not diagnosed until 2004. In the absence of demonstration of continuity of symptomatology, the initial demonstration of the disabilities at issue, decades after service, is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no competent clinical evidence that relates his right hip disability, gastrointestinal complaints, hypertension, right foot disability, and right leg disability to his service. None of the veteran's various VA and private treatment records indicate that the veteran's claimed disabilities are related to his military service or his service-connected disabilities. In fact, the March 2005 VA examiner found that the veteran's right foot and right leg disabilities were unrelated to the veteran's service- connected shell fragment wound of the mid back, with injury to Muscle Group XX. Similarly, the October 2007 VA examiner found that the veteran's right hip disability was unrelated to the veteran's military service, including his service- connected disabilities, particularly, the shell fragment wound of the mid back. Likewise, the September 2005 VA examiner found that it was unlikely that the veteran's gastrointestinal disability and hypertension were related to his military service or any of his service-connected disabilities. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish. the existence of a disability [and] a connection between the veteran's service and the disability . . ."). See also Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). Moreover, the February 2006 VA examiner found that none of the veteran's claimed disabilities were likely to have been aggravated by any of his service-connected disabilities; the veteran's service-connected conditions were not likely to worsen his claimed, nonservice-connected disabilities beyond their expected natural progression. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). In short, the only evidence portending that the veteran's right hip disability, gastrointestinal disability, hypertension, right foot disability, and right leg disability are in any way related to his service in the military, including his service-connected disabilities, comes from him personally. As a layman, the veteran simply does not have the necessary medical training and/or expertise to determine the cause of these conditions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current condition at issue to that symptomatology. Id. As such, his allegations, alone, have no probative value without medical evidence substantiating them. So the preponderance of the evidence is against his claims, in turn, meaning the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Increased Disability Evaluation for PTSD According to the current regulations, a mental disorder should be evaluated "based on all the evidence of record that bears on occupational and social impairment . . . ." See 38 C.F.R. § 4.126(a) (2006). The veteran's PTSD is evaluated as 30-percent disabling. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. Whereas a 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Code 9411. Upon reviewing the rating criteria in relation to the medical evidence of record, the Board finds that the veteran's overall disability picture is consistent with the currently assigned 30 percent rating, and that a higher evaluation is not warranted. The objective clinical evidence of record does not show that the veteran has difficulty understanding complex commands, impaired memory, impaired insight or judgment, disturbances of motivation and mood, or difficulty maintaining relationships. His March 2005 VA examination report, as well as his VA treatment records indicate he is correctly oriented (to time, person, place, situation, etc.) and cooperative, with good eye contact and adequate grooming. In addition, there is no objective clinical evidence of delusions, suicidal or homicidal ideation, or hallucinations. There also is no persuasive evidence of obsessive-compulsive behavior, phobias, panic attacks, or poor impulse control. Nor is there any evidence of any psychomotor retardation, inappropriate behavior, or abnormal involuntary movement. Likewise, his speech is coherent and relevant and there is no evidence of an impaired thought process or psychoses. Records also show he is able to participate in many activities of daily living - despite his irritability and nightmares, which are already contemplated by the currently assigned 30 percent evaluation. (See, i.e., March 2005 VA examination report, January 2006 VA medical records). Additionally, the veteran's Global Assessment of Functioning (GAF) score, as a result of the impact of his service- connected PTSD was consistently between 55 and 65. GAF scores of 51 to 60 are indicative of moderate symptoms such as a flat affect or occasional panic attacks, or moderate difficulty in social or occupational functioning (i.e., few friends, conflicts with peers). A score of 61 to 70 is indicative of some mild symptoms, such as a depressed mood and mild insomnia, or some difficulty in social or occupational functioning, but generally with some meaningful interpersonal relationships. See also 38 C.F.R. § 4.130 and Richard v. Brown, 9 Vet. App. 266, 267 (1996). As such, there is no justification for increasing the rating for his PTSD on the basis of his GAF scores; they clearly exceed the requirements for a rating higher than 30 percent. The Board also has considered whether the veteran is entitled to a greater level of compensation on an extra-schedular basis. However, the record does not present such an exceptional or unusual disability picture so as to render impractical the application of the regular rating schedule standards. See 38 C.F.R. § 3.321(b)(1). There has been no showing by him or anyone on his behalf that his PTSD has caused marked interference with his employment (beyond that contemplated by his 30 percent schedular rating) or that PTSD necessitated frequent periods of hospitalization such that application of the regular schedular rating standards is rendered impracticable. Indeed, the March 2005 VA examiner found that the veteran's PTSD symptoms were mild and would have a minor impact on his employment. As such, the Board finds that this case does not warrant referral to the Director of Compensation and Pension Service for extra- schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The preponderance of the competent evidence reveals that the veteran does not meet the criteria for an initial rating in excess of 30 percent. Clear and Unmistakable Error Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). VCAA includes an enhanced duty on the part of VA to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits and which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA. See 38 U.S.C.A. § 5103(a) and (b) (West 2002). Also see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran here contends that the RO committed clear and unmistakable error in connection with a November 1981 rating decision. Although the VCAA is generally applicable to all claims filed on or after the date of its enactment, it is not applicable to CUE claims. In Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) the Court held that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions." In essence, the Court in Livesay continued to hold that the VCAA is potentially applicable to all pending claims, as it had held in Holliday v. Principi, 14 Vet. App. 280 (2000). However, the Court further indicated that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant", as defined by 38 U.S.C.A. § 5100 (West 2002), cannot encompass a person seeking revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. See also 38 C.F.R. § 20.1411(c) and (d) (2007). Based on the Court's precedential decision in Livesay, the Board concludes that the veteran's CUE claims are not subject to the provisions of the VCAA. The Board hastens to point out that general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran and his attorney have been accorded ample opportunity to present evidence and argument on this matter. They have not pointed to any pertinent evidence which exists and which has not been associated with his VA claims folder and they have not asked that any additional evidence be obtained. The Board observes in this connection that, in general, a CUE claim does not involve the submission of additional evidence apart from what already resides in the claims folder. Legal Criteria Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (2007). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied. Second, 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." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). According to the Court, CUE is a very specific and rare kind of error. "It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, 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, ipso facto, clear and unmistakable." See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell at 313). The Court has defined CUE as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Court has also held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Analysis The veteran asserts that the RO committed CUE in its failure to grant service connection for a low back disability in the November 1981 rating decision. The Board concludes that the veteran's motion for revision in conjunction with the attorney's arguments are enough to satisfy the requirements of clearly and specifically stating the alleged clear and unmistakable error, or errors, of fact or law in the prior rating decisions, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. See Canady v. Nicholson, 20 Vet. App. 393 (2006) (authorizing the Board to read sympathetically requests for revision based upon CUE). The veteran and his representative claim there was CUE in the November 1981 rating decision because the denial of his claim was predicated solely on the absence of medical evidence of a relationship between the veteran's current low back disability and his service-connected shell fragment wound of the mid back, with injury to Muscle Group XX. According to the veteran and his representative, because the veteran's post-service complaints of low back pain began after his in- service mid back injury, his low back disability was related to the in-service injury, and the RO did not adequately consider a July 1981 VA treatment record which diagnosed the veteran with low back pain, secondary to a war injury, when it determined that the veteran did not have a service- connected low back disability. This lack of consideration of the veteran's medical records, according to the veteran, constitutes "grave procedural error" warranting a finding of CUE. However, this argument is misplaced. While it is indeed true the RO's November 1981 denial of the veteran's claim was based on the absence of an objective finding relating to his low back during his military service, the Board points out that the claimed disability was not shown in the veteran's service medical records, and the existence of the claimed disability in service (or a relevant injury) was a necessary requirement for granting service connection under the law then in effect (and this remains unchanged). The only evidence before the RO at the time of the initial denial in 1981 was the veteran's service medical records and the veteran's VA treatment records dated January 1981 to October 1981. The veteran's service medical records, as pointed out, did not confirm he had been diagnosed with a low back disorder at his discharge from the military. Moreover, although the veteran's VA treatment records showed treatment for low back pain on various occasions, and a diagnosis of spondylolisthesis and lumbosacral pain syndrome, these records also indicated a post-service occupational injury. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Similarly, the association of the veteran's low back disability to his military service appears to have been based solely on the history of injury as reported by the veteran. See Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) ( the presumption of credibility is not found to "arise" or apply to a statement of a physician based on a factual premise or history as related by the veteran). The argument that the various VA treatment notes and diagnoses related to his low back following his military service, but absent any findings of a back disorder at separation or upon VA examination, warranted a finding of service connection by the RO, is merely a disagreement with the RO's evaluation of the evidence and, consequently, is not a basis for finding CUE. Russell v. Principi, 3 Vet. App. at 313. In other words, the veteran and his representative are making an argument tantamount to the RO should have given more credence and probative value to the treatment records from after his service than to what was noted (or not documented) during the separation examination. However, that determination was within the RO adjudicator's realm of discretion, in weighing evidence both for and against the claim. To the extent that the veteran's claim encompasses a request for a reweighing of the evidence, such is impermissible for a clear and unmistakable error claim. See Luallen v. Brown, 8 Vet. App. 92 (1995); Damrel v. Brown, 6 Vet. App. 242 (1994). Moreover, even assuming, as alleged, that the RO did not fully consider the various post-service findings related to his back, as noted in his VA treatment records, the Board notes that the RO is not qualified to make determinations of medical causation without clear evidence or an opinion demonstrating a causal link. The veteran did not provide any additional evidence indicating that his low back disability was causally or etiologically related to his service, and, without such a medical evidence, the RO could not conclude that the veteran had a low back disability was causally or etiologically related to the veteran's service. Accordingly, the Board concludes that the RO considered all of the relevant law and evidence in the November 1981 rating decision, and this decision was not clearly and unmistakably erroneous. (CONTINUED ON NEXT PAGE) ORDER Service connection for a right hip disability, including as due to service-connected disability, is denied. Service connection for a gastrointestinal disability, including as due to service-connected disability, is denied. Service connection for hypertension, including as due to service-connected disability, is denied. Service connection for a right foot disability, including as due to service-connected disability, is denied. Service connection for a right leg disability, including as due to service-connected disability, is denied. The claim for a rating higher than 30 percent for PTSD is denied. The claim of CUE in the November 10, 1981 rating decision, which denied the veteran's claim of entitlement to service connection for a low back disability, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs