Citation Nr: 1307417 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-36 385A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether there was Clear and Unmistakable Error (CUE) in a May 2004 RO rating decision in the assignment of a 20 percent initial evaluation for chronic inflammatory demyelinating radicular neuropathy of the right leg, effective July 19, 2003. 2. Whether there was CUE in a May 2004 RO rating decision in the assignment of a noncompensable initial evaluation for chronic inflammatory demyelinating radicular neuropathy of the right arm, effective July 19, 2003. 3. Whether there was CUE in a May 2004 RO rating decision in the assignment of a noncompensable initial evaluation for chronic inflammatory demyelinating radicular neuropathy of the left arm, effective July 19, 2003. 4. Whether there was CUE in a May 2004 RO rating decision in the assignment of a 20 percent initial evaluation for chronic inflammatory demyelinating radicular neuropathy of the left leg, effective July 19, 2003. 5. Whether there was CUE in a May 2004 RO rating decision in the assignment of a 10 percent initial evaluation for low back pain associated with chronic inflammatory demyelinating polyneuropathy, effective July 19, 2003. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 1988; and from January 1995 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina denying the Veteran's petition for revision of a May 2004 rating action on the basis of CUE, regarding the assigned initial evaluations for service-connected disabilities. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)(observing that an "initial" evaluation constitutes the original rating assigned for service-connected disability immediately from the effective date of service connection). The Veteran was scheduled for a June 2012 Board videoconference hearing, but cancelled this proceeding and has not rescheduled it. See 38 C.F.R. § 20.704(e) (2012). The record indicates numerous additional issues that were under appellate review, as referenced by a June 2010 Statement of the Case (SOC) (denoting 32 distinct issues) for claims for increased rating for all manifestations of chronic inflammatory demyelinating radicular neuropathy, service connection for several medical conditions as secondary to chronic inflammatory demyelinating radicular neuropathy, and claims for special monthly compensation (SMC). The Veteran then filed a June 2010 VA Form 9 perfecting an appeal to the Board. However, in March 2011, before this case was certified to the Board, the Veteran expressly withdrew his appeal of these additional issues, and clarified that he was only pursuing his CUE claims before the Board. These additional claims are no longer on appeal. See 38 C.F.R. § 20.204 (2012). Through continued correspondence, the Veteran has raised a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU); a claim for service connection for osteopenia, secondary to service-connected chronic inflammatory demyelinating radicular neuropathy; and a new claim for SMC, including due to housebound status. These issues have not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claims, and they are referred to the RO for initial consideration. The Veteran in June 2012 correspondence also appears to again contest the current assigned disability evaluations for various manifestations of service-connected chronic inflammatory demyelinating radicular neuropathy, apart from the claims that he recently withdrew from appeal. Consequently, the RO should clarify with the Veteran whether he intends to pursue these matters and then follow-up accordingly (including adjudicating the claims in the first instance if requested). The Board presently decides the Veteran's petition to revise the RO decision involving CUE with regard to the assigned initial evaluation for low back pain associated with chronic inflammatory demyelinating polyneuropathy. In order to ensure that the Veteran receives due process under law, the remaining CUE claims on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The RO's May 2004 rating decision as regarding the assigned initial evaluation for low back pain associated with chronic inflammatory demyelinating polyneuropathy, was not factually flawed or undebatably erroneous; involved no obvious or undebatable legal error, as alleged, involving the evaluation of the Veteran's service-connected low back pain under the rating criteria (i.e., other than that directly pertaining to evaluating multiple sclerosis). CONCLUSION OF LAW The RO's May 2004 rating decision was not clearly and unmistakably erroneous in assigning a 10 percent initial evaluation for low back pain associated with chronic inflammatory demyelinating polyneuropathy. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.105(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). However, the VCAA does not generally apply in petitions for revision due to CUE in a prior RO rating decision, as observed by the U.S. Court of Appeals for Veterans Claims (Court). See Parker v. Principi, 15 Vet. App. 407 (2002), citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); See also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Thus, the Board may fairly adjudicate on the merits the Veteran's CUE petition as it involves the instant matter. The Veteran has brought several allegations of CUE regarding a May 2004 RO rating decision and the initial assigned evaluations for various manifestations of chronic inflammatory demyelinating radicular neuropathy. The current petition involves an allegation of CUE in the assignment of an initial 10 percent evaluation for low back pain, associated with chronic inflammatory demyelinating radicular neuropathy. The prior May 2004 rating decision granted service connection and assigned an initial 10 percent evaluation for low back pain, effective July 19, 2003, under provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8018-5237, for lumbosacral strain evaluated by analogy to the condition of multiple sclerosis. See 38 C.F.R. § 4.27 (providing that when an unlisted disease, injury, or residual condition is encountered it may be rated by analogy). The Veteran's theory of CUE is that the RO ostensibly utilized the rating criteria for multiple sclerosis in evaluating his neuropathy and residual conditions, and that this criteria required the minimum assignment of a 30 percent evaluation. The Veteran cites 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8018, multiple sclerosis, providing for a minimum rating of 30 percent. (A note to the rating criteria states that it is required for the minimum ratings for residuals under Diagnostic Codes 8000-8025 that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, are to be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease.) As a general matter, previous RO decisions that were not timely appealed are final and binding on the veteran based on the evidence then of record and will be accepted as correct in the absence of CUE. The prior decision will be reversed or amended only where the evidence establishes this error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). CUE is defined as 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). The Court has indicated that a three-pronged test is used to determine whether CUE was in a prior decision: (1) 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; (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 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). In order for an alleged error to constitute CUE, it must have consisted of an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts, not merely misinterpretation of the facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). A claim of CUE on the basis that the previous adjudication at issue "improperly weighed and evaluated the evidence" does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. A breach of VA's duty to notify and assist likewise does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). This includes situations when the RO is alleged to have breached the duty to assist a veteran in obtaining relevant service medical records that may render a prior rating decision non-final, or another kind of "grave procedural error" ostensibly has occurred. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (en banc) (overruling Hayre v. West, 188 F.3d 1327, 1334 (Fed. Cir. 1999)). However, the failure to apply a relevant law or regulation is an appropriate subject for a claim of CUE. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 329 (1999), citing Olson v. Brown, 5 Vet. App. 430, 433 (1993). The provisions of 38 C.F.R. § 4.27 on "Use of Diagnostic Codes Numbers," as in effect in May 2004, stated as follows: The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. No other numbers than these listed or hereafter furnished are to be employed for rating purposes, with an exception as described in this section, as to unlisted conditions. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded "5002-5289." In this way, the exact source of each rating can be easily identified. In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature. Residuals of diseases or therapeutic procedures will not be cited without reference to the basic disease. 38 C.F.R. § 4.27 (2004). The Court has held that where a condition is rated by analogy, the Board has a heightened duty to provide a thorough statement of reasons or bases. Suttman v. Brown, 5 Vet. App. 127, 134 (1993). Applying the law applicable in May 2004, the Board does not ascertain a definitive legal error in the determination to assign a 10 percent initial evaluation for the Veteran's low back pain associated with chronic inflammatory demyelinating radicular neuropathy. The provisions of 38 C.F.R. § 4.27 indicate how disorders not directly contemplated by the VA rating schedule will be evaluated, with one option being a similar listed condition, hyphenated and followed by the condition representing the actual residual of service-connected disability. It is generally the condition to the right of the hyphenation that designates the rating criteria chosen; the condition to the left can state the underlying etiology or pathology, or otherwise simply explain the type of precipitating disorder. However, there is no requirement, express or implied, under section 4.27, that the first listed condition on the left side have any significance in terms of what rating criteria is ultimately applied, other than provide assistance in describing the nature of the overall condition. The meaning of the regulation in this respect is clear. McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005). Rules of statutory interpretation apply as well to interpretation of agency regulations. Roberto v. Dep't of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006). If there is no ambiguity, interpretation of a regulation ends with its plain meaning. Id. The plain and unambiguous meaning of a statute prevails in the absence of clearly expressed legislative intent to the contrary. See Mansell v. Mansell, 490 U.S. 581, 592, 109 S.Ct. 2023, 2030, 104 L.Ed.2d 675 (1989). Such is the case here. The RO assigned Diagnostic Code "8018-5237," which may be reasonably interpreted as implementing the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for orthopedic manifestations of lumbosacral strain. As for the inclusion of Diagnostic Code 8018 for descriptive purposes (which literally applies to the condition of multiple sclerosis), this did not under the law bind the RO to any of the rating criteria for multiple sclerosis, or the attendant minimum 30 percent evaluation for its service-connected residuals. The purpose of citing Diagnostic Code 8018 in this instance explains that the Veteran's low back pain had a neurological origin, rather than one of an underlying syndrome of the lumbosacral spine or associated musculature. Moreover, the evidence did not warrant direct application of Diagnostic Code 8018. The medical evidence does not reflect a clinical diagnosis of multiple sclerosis, and the Veteran does not otherwise contend that such a diagnosis was warranted. The Veteran has a neuropathy, though the diagnosis is not actually multiple sclerosis. While the Board recognizes the arguments raised by the Veteran, ultimately there is nothing from section 4.27 on analogous rating procedures, or otherwise from the medical evidence, as to require that the provisions of Diagnostic Code 8018 are directly applied. Though the RO did not provide an extensive explanation for its choice of diagnostic codes, there was nothing inherently erroneous committed either. At the very least, it cannot be said that there was an undebatable error of law on the part of the RO, under the strict standard that is required to establish CUE. For these reasons, the May 2004 RO rating decision to the extent it assigned a 10 percent initial evaluation for low back pain, is found to withstand this CUE inquiry. ORDER There was not CUE in a May 2004 RO rating decision which assigned a 10 percent initial evaluation for low back pain associated with chronic inflammatory demyelinating polyneuropathy, effective July 19, 2003. REMAND The Veteran has also raised CUE challenges with the May 2004 RO rating decision as to the initial assigned ratings for manifestations of chronic inflammatory demyelinating radicular neuropathy consisting of neuropathy of the bilateral upper and lower extremities. However, the RO has considered the issue of CUE involving radicular neuropathy only based on the argument that service-connected disability was rated as analogous to the condition of multiple sclerosis, but not directly to that condition (under which circumstances a minimum 30 percent evaluation would otherwise apply for service-connected residuals, under 38 C.F.R. § 4.124a, Diagnostic Code 8018). However, in his June 2010 Notice of Disagreement (NOD) with the denial of his claims, the Veteran raised a new theory of CUE, that the RO wholly misapplied the rating criteria in assigning too low a disability evaluation under 38 C.F.R. § 4.124a regarding his neuropathy of the upper and lower extremities, specifically, taking into account provisions which according to the Veteran, required a finding of at least "moderate" level neurological impairment based on involvement that was sensory in degree. The Veteran's newly-asserted theory must receive due consideration, and the Board does not express any viewpoint on the merits at this point. The RO has not yet considered the Veteran's specific theory of entitlement of CUE in relation to the instant case, and must do so in the first instance, and therefore a remand is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced). See also, Andre v. Principi, 301 F.3d 1354, 1361 (2002) ("Because a CUE claim involves an allegation of an error with 'some degree of specificity,' a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."). Accordingly, the case is REMANDED for the following action: The RO/AMC should readjudicate the claims on appeal for chronic inflammatory demyelinating radicular neuropathy of the bilateral upper and lower extremities, in view of the revised theory of CUE raised by the Veteran (per his June 2010 NOD statement - regarding alleged misapplication of the rating criteria to the evidence, including that applicable to neurological disability of wholly sensory involvement). If the benefit sought on appeal is not granted, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs