Citation Nr: 1318353 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-18 772 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than January 12, 1998, for the award of a 100 percent rating for episodic ventricular arrhythmia, status post automated implanted cardiac defibrillator (AICD), to include on the basis of clear and unmistakable error (CUE) in a July 22, 1997 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2006 rating decision. As history, in an October 2005 rating decision, the RO, inter alia, granted a 100 percent rating for episodic ventricular arrhythmia, status post AICD, effective January 12, 1998. The Veteran disagreed, generally, with the October 2005 rating action and, in March 2006, the RO issued a decision that no revision was warranted in regard to the assigned effective date. The Veteran subsequently perfected a timely appeal. In June 2009, the Board, inter alia, remanded the claim for earlier effective date to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. After accomplishing further action, the AMC continued to deny the claim (as reflected in a February 2011 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. In September 2011, the Board expanded the Veteran's earlier effective date claim to include consideration of the matter of whether there was CUE in a July 1997 rating decision, and remanded the claim to the RO, via the AMC, for further action, to include initial consideration of the matter of CUE. After taking further action, the AMC continued to deny the claim (as reflected in an August 2012 SSOC) and returned this matter to the Board for further appellate consideration. This matter was last before the Board in February 2013, at which time, the Board observed that the RO/AMC had not considered the Veteran's CUE claim or informed him of all pertinent legal authority. The Board again remanded the claim, expressly for consideration and notice of all pertinent legal authority, to include that governing CUE. After taking additional action, the AMC issued an April 2013 SSOC reflecting continued denial of the claim and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. In a September 1990 rating decision, the RO granted service connection for episodic ventricular arrhythmia and assigned a 10 percent disability rating, effective August 24, 1990; the 10 percent rating was continued by February 1992 and March 1996 decisions. 3. In a July 1997 rating decision, the RO assigned a 100 percent disability rating for the Veteran's episodic ventricular arrhythmia, effective August 24, 1990, and a 30 percent rating, effective October 1, 1991. Although a September 1997 letter to the Veteran provided notice of the June 1997 decision, and of his appellate rights, the Veteran did not appeal the rating decision. 4. The Veteran has established, that the correct facts-specifically, as reflected in VA medical records documenting, among other things, a December 1993 cardiac surgery in which the Veteran's defibrillator was replaced and he received a pacing system-were not before the RO at the time of the July 1997 rating decision and such omission manifestly changed the outcome of the decision. 5. The Veteran experienced 11 defibrillator shocks in the year prior to the December 23, 1993 VA surgery replacing his defibrillation device and implanting a pacing system. CONCLUSIONS OF LAW 1. Based upon the Board's finding of CUE in the July 1997 rating decision, the criteria for a 60 percent disability rating for episodic ventricular arrhythmia, status post AICD, for the period from October 1, 1991 to December 22, 1993, are met. 38 U.S.C.A. §§ 5110, 7105(c) (West 2002); 38 C.F.R. §§ 3.105, 3.400 (2012), 4.104 Diagnostic Code 7015 (1996) . 2. Based upon the Board's finding of CUE in the July 1997 rating decision, the criteria for a 100 percent disability rating for episodic ventricular arrhythmia, status post AICD, for the period from December 23, 1993 to January 23, 1995, are met. 38 U.S.C.A. §§ 5110, 7105(c) (West 2002); 38 C.F.R. §§ 3.105, 3.400 (2012), 4.104 Diagnostic Code 7015 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). At the outset, the Board points out that, in this case, the Veteran has advanced only two legal arguments for claim for an earlier effective date: that changes to the rating schedule, effective January 12, 1998, should be applied retroactively from the date he was awarded service connection; and there was CUE in a July 1997 rating decision. As regards the first basis, the Board notes that the law is dispositive and, as such, the VCAA is not applicable. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As regards the second basis, given the parameters of the law surrounding CUE claims (as explained in more detail below), the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed, in Board decisions (see Livesay v. Principi, 15 Vet. App. 165 (2001), or, as here, in RO decisions (see Parker v. Principi, 15 Vet. App. 407 (2002)). As noted in Livesay, CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim based on 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. Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. Id. Accordingly, duties to notify and assist required by the VCAA are not applicable with respect to either argument advanced in support of the claim for earlier effective date. However, as will be made evident in the analysis below, because the Board is finding CUE in the July 22, 1997 rating decision, and is analyzing the merits of questions therefore raised regarding the appropriate ratings assigned for the Veteran's cardiac disability, discussion of pertinent notice provided, and development accomplished, with respect to the matter of entitlement to a higher rating is warranted. Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In the present appeal, January 2006, September 2011, and February 2013 letters informed the Veteran of the evidence required to substantiate a claim for an increased rating as well as what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. A March 2006 letter, as well as the September 2011 and February 2013 letters, provided notice of general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. A June 2006 SOC set forth the provisions of 38 C.F.R. § 105 (the legal authority governing revision of decisions), 38 C.F.R. § 114 (the provisions describing the effects of changes of law), 38 C.F.R. § 3.400 (the legal authority governing effective dates for awards of compensation), and 38 C.F.R. § 4.104 (the pertinent portion of the rating schedule for the cardiovascular system, as it existed before and after the change of law effective January 12, 1998). Further, the March 2006 rating decision, June 2006 SOC, February 2011 SSOC, August 2012 SSOC, and April 2013 SSOC all include explanation of the reasons for the denial of the Veteran's request for an earlier effective date as well as explanation of the reasons for the RO's denial of his allegation of CUE. Since the AMC readjudicated the claim in August 2012 and April 2013 SSOCs, any timing defect in the provision of additional notice has been rectified ("cured"). See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also notes that the Veteran has been notified of all pertinent legal provisions and he has displayed actual knowledge of such provisions in his arguments submitted to VA. See April 2006 letter discussing CUE, June 2006 letter discussing rating criteria, and August 2010 letter discussing effective dates. Moreover, the Veteran's authorized representative has submitted briefs discussing CUE (May 2011 brief) and the history of changes to the VA schedule of rating cardiovascular disabilities (October 2012 brief). The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. He has been afforded the opportunity to present evidence and argument with respect to the claim on appeal. Moreover, in April 2013, the Veteran submitted a Request for Expedited Processing in which he attested that he did not have any additional information and wished for the Board to proceed to adjudicate his claim. As noted above, there have been multiple remands in this appeal. In June 2009, the Board, inter alia, directed the RO/AMC to obtain the Veteran's records from the Social Security Administration (SSA) and readjudicate the issue of his entitlement to an earlier effective date for the 100 percent disability rating assigned effective January 12, 1998 for ventricular arrhythmia. In September 2011, the Board directed the RO/AMC to obtain outstanding VA treatment records dated from 1991 to 1997 and to readjudicate the claim for an earlier effective date, including adjudication of the Veteran's claim of CUE in the July 1997 rating decision. In February 2013, the Board directed the RO/AMC to afford the Veteran the opportunity to submit additional information and again readjudicate the claim for an earlier effective date, including adjudication of the Veteran's claim of CUE in the July 1997 rating decision, with discussion of applicable portions of VA's schedule for rating cardiovascular disability. The Veteran's SSA records have been associated with the claims file and, as observed above, VA has readjudicated the Veteran's claim for an earlier effective date, to include his claim of CUE in the July 1997 rating decision, with discussion of the applicable portions of VA's schedule for rating cardiovascular disability. As all requested development has been substantially accomplished on remand, there was compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). Although the AMC did not (as directed by the February 2013 Remand) specifically provide the relevant portions of VA's schedule for rating disabilities of the cardiovascular system in the April 2013 SSOC, provisions of the pertinent diagnostic codes were set forth in the May 2006 SOC and the Veteran has displayed knowledge of those provisions, so he is not prejudiced. Bernard v. Brown, 4 Vet. App. 384 (1993). As such, there is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114 (a). 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. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). Here, the Veteran contends that he is entitled to an earlier effective date, prior to January 12, 1998, for the award of a 100 percent disability rating for his episodic ventricular arrhythmia, status post AICD. His current 100 percent rating is assigned pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7011, for ventricular arrhythmias. Code 7011 was added to the rating schedule effective from January 12, 1998. A note in the revised schedule specifically directs that implantable cardioverter defibrillators are to be evaluated under Code 7011. See 62 Fed. Reg. 65,207 (Dec. 1997). Prior to January 12, 1998, the rating schedule did not contain a diagnostic code specific to the Veteran's disability. Pertinent cardiovascular codes existing prior to January 12, 1998 included the following: * Code 7011, auricular fibrillation, paroxysmal, rated as paroxysmal tachycardia; * Code 7012, auricular fibrillation, permanent, rated 10 percent disabling; * Code 7013, tachycardia, paroxysmal; rated 30 percent disabling for severe frequent attacks and 10 percent for infrequent attacks; * Code 7014, sinus tachycardia, rated 10 percent disabling if persistently 100 or more in recumbent position; * Code 7015, auriculoventricular block: o Complete, with attacks of syncope necessitating the insertion of a permanent internal pacemaker, and for 1 year, after which period the rating will be on residuals - rated 100 percent; o Complete, with Stokes-Adams attacks several times a year despite the use of medication or management of the heart block by pacemaker - rated 60 percent; o Complete, without syncope or minimum rating when pacemaker has been inserted - rated 30 percent; o Incomplete, without syncope, but occasionally symptomatic - rated 10 percent; and o Incomplete, asymptomatic, without syncope or need for medicinal control after more than 1 year - rated non-compensable. A Note to Code 7015 states that the 100 percent rating for 1 year following the implantation of permanent pacemaker will commence after the initial grant of the 1 month total rating assigned for hospital discharge. 38 C.F.R. § 4.104, Diagnostic Code 7015 (1996). At the outset, the Board notes that any argument that an effective date earlier than January 12, 1998 for the award of a 100 percent rating can be assigned by retroactively applying liberalizing legislation is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Even when amended regulations are more favorable to a claimant, they generally cannot be applied prior to their effective date, unless the implementing agency specifies otherwise. See VAOPGCPREC 3-00; 65 Fed. Reg. 33,422 (2000); see also Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Here, the effective date of the revised rating criteria for diseases of the heart is January 12, 1998. See 62 Fed. Reg. 65,207 (Dec. 1997). As there is no indication that the revised rating criteria are intended to have retroactive effect, VA can only consider the former criteria for any period prior to the effective date of the new diagnostic codes, and may only consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v, Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3-00 and 7-2003 (2003). By way of history, the Board observes that the Veteran experienced sudden cardiac death while on active duty in March 1990. Testing revealed ventricular arrhythmia and he underwent surgery for placement of an Automatic Implantable Cardiac Defibrillator (AICD) in June 1990. In a September 1990 rating decision, the RO awarded the Veteran service connection for episodic ventricular arrhythmia and assigned a 10 percent disability rating effective August 24, 1990, the day after his discharge from active duty service. A September 1991 report of telephone contact reflects that the Veteran's mother called to report that he had been experiencing chest pains. She stated that she was not sure whether or not his device had been firing; the health care professional noted in the report that there were "apparently no syncopal episodes." A subsequent September 1991 VA treatment note reflects that the Veteran was seen later that month for a check of his AICD and reported experiencing four back-to-back shocks on August 15, 1991 while water-skiing. The note states that the AICD was assessed as charging "ok." On VA examination of the Veteran in October 1991, the physician noted review of the Veteran's cardiac treatment history; the examination report reflects the Veteran's contention that his AICD fired "every time [he] tried anything even mildly strenuous." The physician noted that his S1 and S2 heart sounds were within normal limits. Subsequently, the RO confirmed and continued the 10 percent rating in a February 1992 rating decision; the decision reflects that the rating specialist relied solely on the VA examination in order to make the decision. As noted in treatment records associated with the claims file in March 2010, the Veteran was seen for cardiac care in December 1991 and March, June, and December 1992. The December 1991 VA cardiac treatment note states that the AICD had fired once in November and once earlier in December, but the 1992 records reflect no firings of his AICD. He was absent from cardiac care for the following year, but reported for treatment in December 1993 and informed VA health care providers of numerous AICD "shocks." Evaluation of the device revealed that it had discharged 11 times over the last year. The Veteran's VA cardiologist determined that the device needed to be replaced. A subsequent VA operative report reflects that the Veteran was scheduled for a "routine pulse generator change" on December 23, 1993. The report of the procedure reflects that one of the leads was cut during surgery and others were found to be defective. As a result, the surgeons replaced the defective leads, plugged in a new pulse generator, and "placed an Endotak venous pacing system." It was noted that the Veteran recovered well from the procedure. He was seen for follow-up evaluation in March 1994 and reported no shocks, and no other complaints, since the December 1993 surgery. During a June 1994 appointment, he reported that his device had fired four to five times on a single occasion when he was "wrestling with friends," but he had not experienced syncope. In September 1994, he reported no shocks. He was not seen again until August 1995. At that time, he reported that he could not remember experiencing any shocks since the December 1993 surgery. No shocks were noted at appointments in November 1995 and February 1996. In December 1995, the Veteran informed his VA cardiologist that he could not report to an appointment because he had limited sick leave at a new job; he requested that an appointment be scheduled in conjunction with an upcoming VA review examination. None of the records dating from March 1992 through February 1996 were associated with the claims file until March 2010. The Veteran was afforded a VA cardiac examination in February 1996. The examiner noted that the Veteran received an AICD in 1990, but he reported that it had been replaced in December 1993 due to improper firing. The examiner noted that the treatment record reflected no firings of his AICD since August 1995. His S1 and S2 heart sounds were normal and an EKG showed normal sinus rhythm. The Veteran's 10 percent disability rating was continued in a March 1996 rating decision. The rating specialist reported review only of the February 1996 VA examination and explained that a higher rating was not warranted because the Veteran had not had any episodes of arrhythmia since August 1995. The Veteran wrote to VA in May 1996 and contended that he was entitled to a higher rating for his arrhythmia. He wrote that his AICD discharged upon any type of strenuous activity and, when his device fired, he was incapacitated by the shocks - falling to the ground and writhing until it completed. The Veteran's mother also wrote that, upon physical exertion, the Veteran would be "convulsed by electric shocks from his defibrillator." An EKG conducted in August 1996 revealed sinus bradycardia. He informed an August 1996 SSA examiner that his device had discharged "only... a few times" since replacement in 1993. In March 1997, the Veteran filed a notice of disagreement (NOD) with the March 1996 rating action as well as additional evidence; in his NOD, he stated that an SOC should be issued only if an unfavorable decision resulted. The Veteran subsequently submitted additional information for the RO's consideration. See 38 C.F.R. § 3.156(b) (if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). He contended in a July 1997 letter that he was entitled to a 100 percent disability rating for the year following his initial in-service AICD implantation surgery and to a 30 percent thereafter. The RO readjudicated the Veteran's entitlement to an increased rating in the July 1997 rating decision. At that time, the RO determined that the Veteran was entitled to a 100 percent disability rating, effective August 24, 1990 (the effective date of the award of service connection for ventricular arrhythmia), based on his receipt of an AICD in service and to a 30 percent disability rating from October 1, 1991. The RO granted the Veteran's claim to the extent argued in his July 1997 letter. The 1997 rating decision also includes a parenthetical "Note to Veteran" stating that it was "noted in the records" that his AICD was replaced in 1993; the RO asked the Veteran to submit records of that surgery and informed him that "further adjustment to this rating may be in order based upon review of those records." Although a September 1997 letter to the Veteran provided notice of the June 1997 decision, and of his appellate rights, the Veteran did not appeal the rating decision. Hence, unless an exception to finality applies, the rating decision, and all of its components, is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Years later, in August 2005, the Veteran filed a claim for an increased rating for his ventricular arrhythmia. In response, the RO issued a November 2005 rating decision assigning a 100 percent disability rating effective January 12, 1998, noting the effective date of liberalizing legislation that added Diagnostic Code 7011 to 38 C.F.R. § 4.104. However, in a December 2005 notice of disagreement (NOD), the Veteran asserted his entitlement to an effective date earlier than January 12, 1998 for the award of the 100 percent rating; he specifically asserted CUE in the portion of the July 1997 rating decision assigning him a 30 percent from October 1, 1991. The Veteran contended in a June 2006 letter that VA had committed clear and unmistakable error by not making the prior decision based on "the enormous volume of treatment notes in VA's possession that document exactly what [he contends]." Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Here, the Veteran has advanced a two-prong argument in asserting CUE as the basis for his claim for an earlier effective date of the 100 percent disability rating. He has contended that VA issued the July 1997 rating decision on incorrect/incomplete facts. He has also contended that VA mis-evaluated the evidence by determining, in applying the rating schedule, that his defibrillator could be analogized to a pacemaker. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo, 6 Vet. App. at 44. The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Board finds that the Veteran's allegation that VA incorrectly evaluated the evidence by considering his defibrillator as analogous to a pacemaker when applying the rating criteria is without legal merit. Not only was there no Diagnostic Code specific to defibrillators at the time of the July 1997 rating decision, but the schedule for rating disabilities of the heart, as it existed prior to January 12, 1998, does not reflect any code more analogous to defibrillators than Code 7015 that would avail him of a higher rating. Further, any argument as to how VA evaluated the evidence can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 44. Notwithstanding the above, the Board nonetheless finds that the July 1997 rating involved CUE. As noted above, VA treatment notes as well as VA surgical notes dating from December 1991 to February 1996 were not associated with the claims file at the time of the July 1997 rating decision-the RO/AMC associated them with the record in March 2010. As those records were not associated with the claims file, the correct facts concerning the Veteran's service-connected disability were not before the RO at the time of the decision. Those records, while not physically present in the claims file, were constructively in VA's possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Further, had the facts reflected in those records been known, the outcome of the evaluation of his disability would have been manifestly different. The July 1997 rating decision plainly reflects that the Veteran's ventricular arrhythmia was rated under Code 7015 for auriculoventricular block. In the decision, the RO assigned an initial 30 percent rating under Code 7015, noting that a higher 60 percent rating was not warranted without evidence of Stokes-Adams attacks several times a year despite the use of medication or pacemaker. Since the pre-1998 schedule of rating diseases of the heart did not have a specific code for evaluation of ventricular arrhythmia status post defibrillator implantation, the Veteran's disability was rated by analogy under Code 7015 as that code addresses ventricular disability requiring treatment by implantation of a cardiac device. 38 C.F.R. § 4.20. As the disability was rated by analogy, symptoms may also require analogy-it is not expected that all cases will show all the findings specified. See 38 C.F.R. § 4.21. The treatment records that were not considered at the time of the July 1997 rating decision reflect that the Veteran experienced several ventricular arrhythmias requiring firing of his implanted defibrillator device in 1991 (6 instances) and 1992 (11 instances) and that he underwent defibrillator replacement and placement of a pacing system in December 1993. Thus, it is evident that the RO's assignment of a 30 percent disability rating from October 1, 1991 in the July 22, 1997 rating decision was clearly and unmistakably erroneous. See Damrel, 6 Vet. App. at 245. The only possible result of an analysis of the evidence not considered in July 1997 is manifestly different from the assigned 30 percent rating. That is, a 60 percent rating should have been granted, under the criteria set forth in 38 C.F.R. § 4.104, Diagnostic Code 7015, effective October 1, 1991, as the evidence undebatably demonstrates that the Veteran experienced several ventricular arrhythmias requiring defibrillation (as analogized to Stokes-Adams attacks) until his AICD was repaired/replaced and he received a pacing system in December 1993. Further, as he underwent surgical implantation of new AICD leads, a replacement generator, and a new Endotak pacing system on December 23, 1993, a 100 percent should have been assigned for 13 months following that operation pursuant to Note 2, Code 7015, 38 C.F.R. § 4.104. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, the Board has found that, although the RO assigned the Veteran a 30 percent disability rating for his ventricular arrhythmia, effective October 1, 1991, the July 1997 rating decision was clearly and unmistakably erroneous because the correct facts were not before the adjudicator at the time of the decision. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102 (2012); see also 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the evidence not previously considered in July 1997 in light of the applicable rating criteria, and resolving all reasonable doubt in the Veteran's favor, the Board determines that the 1997 rating decision should be amended in accordance with 38 C.F.R. § 3.105(a) to reflect assignment of a 60 percent rating, from October 1, 1991, and assignment of a 100 percent rating, for the period from December 23, 1993 to January 23, 1995. Therefore, to this extent, the Veteran's appeal is granted. As there is no indication of any ventricular arrhythmias, AICD shocks, or syncope subsequent to January 23, 1995, there is no evidence that a different result (i.e. a rating other than 30 percent) would have ensued had the VA treatment records been associated with the claims file. As such, the Board is unable to find CUE in the assignment of a 30 percent for the time period after January 23, 1995 (see Fugo, 6 Vet. App. at 43-44), and that portion of the July 1997 decision remains final. ORDER For the period from October 1, 1991 to December 22, 1993, a 60 percent disability rating for episodic ventricular arrhythmia, status post AICD is granted, based upon a finding of CUE in the July 1997 rating decision, and subject to the legal authority governing the payment of compensation. For the period from December 23, 1993 to January 23, 1995, a 100 percent disability rating for episodic ventricular arrhythmia, status post AICD, is granted, based upon a finding of CUE in the July 1997 rating decision, and subject to the legal authority governing the payment of compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs