Citation Nr: 1524889 Decision Date: 06/10/15 Archive Date: 06/19/15 DOCKET NO. 13-24 147 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a May 20, 2010 Board decision denying entitlement to service connection for type II diabetes mellitus (diabetes). REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The moving party is the Veteran who served on active duty from July 1974 to July 1994. This matter comes before the Board as an original action on the motion of the moving party to reverse or revise, on the basis of CUE, a Board decision promulgated on May 20, 2010, in which the Board denied a claim for entitlement to service connection for diabetes. The Board notes that specific requirements for a motion for CUE in a Board decision are laid out in 38 C.F.R. § 20.1404(a). A CUE motion must be in writing and must be signed by the moving party or that party's representative. The motion must include the name of the Veteran, the name of the moving party if other than the Veteran, the applicable VA file number, and the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Finally, the movant must set forth clearly and specifically the alleged CUE, or errors of fact or law. In this instance, the Veteran, the moving party, met all requirements of § 1404 except to set forth the date of the decision. There is only one Board decision involved and the decision had only one issue. The Veteran has set forth with specificity the errors and the other identifying information, and the Board is clear what is at issue in the Veteran's CUE motion. The Board thus finds this error is harmless and will proceed to the merits. The issue of new and material evidence to reopen the claim for service connection for diabetes has been raised in documents submitted by the Veteran in January 2014, and it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action FINDINGS OF FACT The May 20, 2010 Board decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied. CONCLUSION OF LAW Clear and unmistakable error is not shown in the May 20, 2010 Board decision. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. §§ 20.1400-20.1411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist are not applicable in CUE claims or motions. See Livesay v. Principi, 15 Vet. App. 165 (2001). On May 20, 2010, the Board denied the Veteran's claim for service connection for diabetes. Review of the record reflects that the moving party (the Veteran) did not appeal the May 20, 2010 Board decision. Accordingly, it became final. See 38 C.F.R. § 20.1100(a). There are two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The Board has original jurisdiction to consider motions for revision of prior Board decisions. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. 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 CUE 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). In a CUE claim, "[t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Crippen v. Brown, 9 Vet. App. 412, 418 (1996). A CUE claim "is not a generalized assertion of entitlement to benefits. Rather, it is an assertion that the [Board] committed a particular clear and unmistakable error." Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2001). CUE is a very specific and rare 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. Fugo v. Derwinski, 6 Vet. App. 40, 43 (1993). In order to find CUE it must be determined (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. See 38 C.F.R. § 20.1403(a) (c); see also Grover v. West, 12 Vet. App. 109, 112 (1999) (citing Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Also, for a claim of CUE to be reasonably raised, the claimant must provide some degree of specificity as to what the error is, and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the error would have manifestly changed the outcome at the time it was made. Bustos v. West, 179 F.3d 1378, 1380 (1999) (citing Russell, 3 Vet. App. at 313 (1992)); see also Fugo, 6 Vet. App. at 44 (1993). Additionally, "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." Fugo, 6 Vet. App. at 43-44; see also 38 C.F.R. § 20.1403(c). Stated another way, to constitute CUE, errors must be "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. Each theory of CUE is an entirely separate and distinct claim. "Under the principle of res judicata, '[o]nce there is a final decision on the issue of [CUE]...that particular claim of [CUE] may not be raised again.'" Link v. West, 12 Vet. App. 39, 44 (1998) (quoting Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc)). Additionally, 38 C.F.R. § 20.1403(d) gives examples of situations that are not CUE. CUE is not a: 1. Changed medical diagnosis. 2. Failure to fulfill the duty to assist. 3. Disagreement as to how the facts were weighed or evaluated. 4. Change in interpretation of a statute or regulation. See 38 C.F.R. § 20.1403(d) (2014). The Board's consideration of a CUE motion must be based on the record that existed when the prior decision was made and no new evidence will be considered, 38 C.F.R. § 20.1405(b). The law precludes remands or other referral for the purpose of deciding the motion. See 38 U.S.C.A. § 7111(e); 38 C.F.R. § 20.1405(b). The benefit of the doubt provisions of 38 U.S.C.A. § 5107(b) are inapplicable in CUE. See 38 C.F.R. § 20.1411(a) (2014). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. The essence of the Veteran's argument is that the Board failed to adequately rebut his contention that his currently diagnosed diabetes was caused or otherwise related to service. Specifically, the Veteran argues that: 1). The Board failed to consider court cases that are factually similar to his claim where diabetes was service connected. The Board notes that the Veteran refers to Board decisions involving other Veterans. 2). The Board violated its prior remand directives, Stegall v. West, 11 Vet. App. 268, 271 (1998), when it relied upon the negative opinion of a physician who was not an endocrinologist after the remand directed VA to provide the Veteran with an examination an endocrinologist to determine if diabetes was related to the Veteran's service. 3). The Veteran has a family history of diabetes. 4). Although diabetes was not diagnosed until April 2003, he was diagnosed as a borderline diabetic in May 1991 in service and the Veteran prevented his blood sugar levels from reaching the diabetic level by following a restricted diet. 5). He had high blood sugar levels in service and first manifested other diabetic symptoms as early as 1984; and. 6). He submitted medical literature that states some of his other medical conditions, such as sleep apnea, can lead to diabetes. Upon review of the May 2010 decision, the Board finds that the allegation of CUE is not supported. The evidence basically established that upon entrance and for several years thereafter, the Veteran's endocrine systemn and laboratory values were normal. At all times during service, the Veteran, when asked, denied excessive thirst. In May 1984, the Veteran complained of tightness, pressure, or pain in his chest and a racing heart as well as shortness of breath, fatigue, fever or chills, and night sweats. He also noticed he had a decreased ability to perform certain activities. In January 1989, a service treatment note indicated that the Veteran's fasting blood sugar FBS was 118 mg/dL, which was noted to be in the slightly high but normal range. A May 1991 eye clinic treatment note described the Veteran as borderline diabetic. A January 1994 urinalysis report was negative for glucose. In an undated report of medical history, which appears to be from 1993 or later because it refers to medical treatment in 1993, the Veteran reported a history of having sugar or albumin in his urine. The physician's summary indicated that sugar was found in the urine in 1990, etiology unknown and not treated; there was no urine in the 1990 exam. At the Veteran's separation examination in February 1994, the urinalysis was negative for sugar. A lab report noted a blood glucose level of 84 mg/dL, with the reference range being 70 to 110 mg/dL. In October 2003, the Veteran was diagnosed with diabetes. A July 2004 VA opinion noted, among other lab results from service, that the Veteran had high glucose in January 1989, but subsequent laboratory tests such as the normal glucose level at separation was normal. The expert concluded there was not enough testing data to diagnose type II diabetes mellitus prior to 2004. In July 2008 the Veteran testified that during service his borderline-diabetic symptoms included eye trouble and fatigue; he denied other symptoms related to diabetes. His wife testified that he had excessive thirst during active duty because he was always walking around with something to drink. He contended that his fatigue during service was due to diabetes and not due to sleep apnea for which he is service connected. In a VA medical opinion report dated in May 2009, the physician stated he made an extensive review of the claims folder. He concluded that there is no evidence of type II diabetes mellitus or any other diagnosis of diabetes. In the past, the Veteran had glucose intolerance at several times due to exogenous obesity, weighing nearly 300 pounds. There was no evidence in the claims folder, including service treatment records, that the requirements for a diagnosis of diabetes mellitus have been met. The Veteran never had elevated hemoglobin A1C readings and the intermittent elevations in both his fasting and two-hour postprandial blood sugars is compatible with glucose intolerance, morbid obesity, and stress. At the time of the May 2010 Board decision, applicable law provided that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002). When a chronic disease is shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 498 (1997). A "chronic disease in service" requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.' Id. When the disease identity is established, there is no requirement of evidentiary showing continuity; however, continuity of symptomatology after discharge is required to support the claim only where the condition noted during service is not, in fact, shown to be chronic or the diagnosis of chronicity may be legitimately questioned. Id. Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 465. The Veteran, however, as a lay person, cannot offer medical opinions as to his medical conditions or their relationship to service as that requires the expertise of a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As noted above, the Veteran has argued that the Board erred when it did not find that his diabetes was related to service. Essentially this represents a disagreement as to how the facts were weighed or evaluated. The May 2010 Board decision concluded that the Veteran's current diabetes was less likely than not had its onset in, caused by, or related to his military service. The Board found that the Veteran's medical opinions were not competent as a lay person. Instead, it found the May 2009 examiner's opinion more persuasive because it was supported by a medical rationale and competent medical evidence. A review of the evidence and the Board's May 2010 decision does not show that the decision was based on incorrect facts or an incorrect application of the law. The facts that the Board cited in its decision are consistent with the evidence associated with the claims file at the time of the decision. Additionally, the law as it was interpreted at that time was correctly applied. At the time of the May 2010 decision the law required competent evidence of a nexus between the Veteran's diabetes and service. To the extent that the Veteran argues that the evidence clearly supports a finding that his diabetes had its onset in service because of his blood sugar readings, the weight of the evidence is against him. The Board's reliance on the May 2009 examiner's opinion was appropriate. The examiner reviewed the evidence of record, interviewed the Veteran, and came to a logical, well-reasoned conclusion based on the facts. The Veteran did not provide any competent evidence to the contrary, that is, a medical opinion explaining and concluding that the Veteran had diabetes and it had its onset or was otherwise related to service. In this regard the Board notes that while the Veteran is competent to describe his current symptoms, he has not demonstrated that he possesses the necessary medical expertise to render a complex medical opinion. See Layno, 6 Vet. App. at 465. Moreover, the Board correctly concluded that the Veteran's in-service blood sugar readings did not equate to diabetes. Review of the service treatment records reflects that he was not diagnosed with diabetes in service after high blood sugar readings were noted, although he was treated as a pre-diabetic. Further, he was not diagnosed with or treated for diabetes during service and post-service medical records are negative for treatment for diabetes until 2003 or 2004. A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The Board, relying on all the evidence of record pertaining to the existence and etiology of the Veteran's diabetes, denied the claim for entitlement to service connection. This was a correct application of the law (as it was then interpreted) to the correct facts and does not support a finding of CUE. Essentially, the legal arguments proffered by the moving party depend on factual findings that he assumes, but which are not clear from the record. In order to conform to his legal arguments, the evidence would have to be weighed differently. Such a disagreement as to how the facts were weighed or evaluated cannot be clear and unmistakable error. See 38 C.F.R. § 20.1403(d)(3) (2014). Furthermore, what the Veteran is essentially doing is drawing his own medical conclusions as to what are the crucial points of the evidence or submitted medical articles, how it applies in the Veteran's case, and he is now asking the Board to draw the same conclusions as a matter of CUE. Neither the Veteran nor the Board is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board is not permitted to rely on its unsubstantiated opinion on a question of medical causation, but must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). For example, he points to high blood sugar levels noted on test such as in 1989, described as high but normal, and states he does not need a contemporaneous diagnosis of diabetes or that the "pre" in "prediabetic" can be ignored. The Board notes that a symptom or laboratory result, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a 'disability' for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). An elevated blood sugar represents only a laboratory finding, and not an actual disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). Again, the Board cannot, as the Veteran asks, substitute its medical judgment for that of the VA examiner either in the first instance in May 2010, or now, in the Veteran's CUE motion. See Kahana. The Veteran makes very specific claims that the Board overlooked or ignored evidence he provided in the form of other Board decisions he argues are similar to his situation, or notations in the record that he had onset of diabetes in service, in 1989, which appears to be history rather than a medical opinion. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis may focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence of record was reviewed and the Veteran's condition was accurately described. "It must be remembered that clear and unmistakable error is a very specific and rare kind of error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Again, based on this standard, the correct facts were before the Board and the asserted error is certainly not undebatable. Veteran also argues the Board erred in relying upon the opinion of a physician who was not shown to be an endocrinologist and therefore relied upon an opinion that did not comply with its prior remand. Again, he is merely expressing disagreement with the way facts were weighed by the RO. Disagreement with the fact that the RO relied on the May 2009 general internal specialist opinion and not a specialist in endocrinology, is also disagreement with the weighing of the facts. As previously noted, a disagreement with how the facts were weighed or evaluated is not adequate to raise a valid argument of CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In any event, "VA benefits from a presumption that it has properly chosen a person qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)); Wise v. Shinseki, 26 Vet. App. 517, 524-27 (2014). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks, 716 F.3d at 585 ("Viewed correctly, the presumption [of competence] is not about the person or a job title; it is about the process."). The expert as discussed made an appropriate examination and investigation and provided rationale for his opinions. As such, there was substantial compliance with the prior remand before the Board issued its May 2010 decision. As to the "court cases" the Veteran submitted, as noted before, the Veteran submitted prior Board decisions, which involve other Veterans. Previously issued Board decisions are considered binding only with respect to the specific case decided and each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 C.F.R. § 20.1303. Consequently, the Board finds that the record at the time of the May 2010 Board decision presented facts that could be evaluated under the law and regulations in existence at that time in such a way as to support the denial of service connection for the Veteran's diabetes. There is nothing in the evidence from the time of the May 2010 rating decision that would compel a conclusion, to which reasonable minds could not differ, that service connection for diabetes was warranted. The Board reiterates that the standard for clear and unmistakable error requires that any such error compel the conclusion that reasonable minds could not differ, and that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Thus, there was no clear and unmistakable error in the May 2010 Board decision denying service connection for diabetes. Since there was no CUE in the May 2010 Board decision, the motion to revise that decision based on CUE must be denied. ORDER The motion asserting that there was clear and unmistakable error in the May 20, 2010 Board decision that denied entitlement to service connection for diabetes is denied. ____________________________________________ ROBERT C, SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeal