Citation Nr: 1756868 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-25 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the June 22, 1987 rating decision, which denied service connection for a sinus condition, contained clear and unmistakable error (CUE). WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which in relevant part denied reopening the previously denied claim of service connection for sinus condition. The Veteran timely appealed. During the pendency of the appeal, the Veteran asserted that there had been CUE in the June 1987 rating decision, which originally denied service connection for a sinus condition. While not separately addressed in a rating decision, that issue was adjudicated in the June 2012 Statement of the Case (SOC). In May 2012, the Veteran testified at the RO before a Decision Review Officer (DRO). He also testified before the undersigned Veterans Law Judge in a July 2014 hearing at the Board in Washington, DC. Transcripts of both hearings are of record. In pertinent part, a December 2014 Board decision denied the Veteran's CUE motion. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2016 memorandum decision, the Court vacated the Board's denial of the Veteran's CUE motion, finding that the Board had provided an insufficient statement of reasons or bases with regard to its reliance on the Veteran's February 2008 letter as acknowledgement that he needed to reopen his claim. Accordingly, the Court returned the case to the Board for further consideration. The December 2014 decision also remanded the issues of entitlement to service connection for allergic rhinitis and a sinus condition for additional development. During the pendency of the remand, an April 2015 rating decision granted service connection for those claims. As that rating decision constitutes a grant of the claims on appeal, those issues are no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (7) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning the effective dates assigned to sinusitis, rhinitis, reactive airway disease, hypertension and hypertensive heart disease, as shown in the electronic claims file (VBMS). Such appeals are contained in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issues will be the subject of a later Board decision, if ultimately necessary. FINDINGS OF FACT 1. A June 1987 rating decision denied service connection for a sinus condition; the Veteran was notified of that decision via a computer generated letter shortly thereafter but did not appeal. That decision is final. 2. The record does not establish that any of the correct facts, as they were then known, were not before the RO at the time of the June 1987 rating decision denying service connection for a sinus condition, or that the RO incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim for service connection would have been manifestly different but for the error. CONCLUSION OF LAW The June 1987 rating decision denying the claim for service connection for a sinus condition is not the product of clear and unmistakable error. 38 U.S.C.A. §§ 310, 331 (West 1982); 38 C.F.R. § 3.303 (1986); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION A final and binding rating decision will be accepted as correct in the absence of CUE. Where the evidence establishes such an error, the prior decision will be reversed and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105(a) (2017). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 38 C.F.R. § 20.1403(a) (2017). It is the kind of error of fact or law which, 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. 38 C.F.R. § 20.1403(a) (2017); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE motion. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) (finding that the claimant simply requesting that the Board reweigh or reevaluate the evidence is not a valid claim of CUE). In determining whether a prior determination involves CUE, the Court has established a three-prong test: (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 or 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, 6 Vet. App. at 245, citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The laws and regulations concerning the issue of entitlement to service connection at the time of the June 1987 rating decision were essentially the same as now. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 310, 331(West 1982); 38 C.F.R. § 3.303 (1986). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (1986). With regard to finality, 38 C.F.R. § 19.192 (1986) provided that a determination on any claim by the agency of original jurisdiction of which the claimant is properly notified shall become final if an appeal is not perfected. As an initial matter, the Veteran asserts that the June 1987 rating decision did not become final because he did not receive notification of the decision and his appellate rights. With regard to the tenth assertion, the Veteran maintains that VA has not demonstrated that he was properly notified of the June 1987 denial. On that basis, he asserts that the June 1987 rating decision is not final and his original March 1987 claim for service connection for a sinus condition remains pending. The Board acknowledges that the claims file does not include a copy of the notification letter that was mailed to the Veteran to inform him of the June 1987 rating decision and his appellate rights. Nevertheless, the record contains a June 26, 1987 VA Form 21-8947 Compensation and Pension Award printout with a handwritten notation that "301 & 303 screens" were prepared. The printout also contained the Veteran's address of record at the time. At the time of the June 1987 rating decision, computer generated notification letters, which contained various language based on the code(s) input into the system by the rating specialist, were permitted. In explaining the computer generated notification system the Adjudication Manual M21-1 (Archived), Part V, Ch. 4, Sub. II, 4.11 states: [t]he Target system provides letters concerning pending claims, awards of benefits or disallowances using the data entered during processing. Letters are produced nightly by the RDPC's (Regional Data Processing Center). The current length limitation is 150 lines which is equal to five pages. Letters are printed up to three times with one copy going to the claimant, one to the power of attorney of record and, if required, one copy for drop filing in the claims folder. The different types of letters issued are as follows . . . (3) Disallowance. The contents of these letters depend on entries on the 301, 303, 405, and 290 Screens (emphasis added). With regard to the handwritten notations on the Compensation and Pension Award printout, a 301 screen was used to input a service-connected condition(s) and disability percentage(s), and the 303 screen was "used to generate the appropriate disallowance paragraphs for either award or disallowance actions." See M21-1, Part V, Chap. 5, Sub. II, 5.02, b-c. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926), Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992), see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (noting the VA need only mail notice to the last address of record for the presumption to attach). The presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 311, Mindenhall. As noted above, VA's adjudication procedures at the time of the June 1987 rating decision permitted computer generated notification letters and the handwritten reference to a "303 screen" indicates that the proper code was "used to generate the appropriate disallowance paragraphs" for the Veteran's denied sinus condition claim. See M21-1 (Archived), Part V, Chap. 5, Sub. II, 5.02, b-c. Moreover, the adjudication manual indicates that the computer generated notification letters were produced on a nightly basis and were thereafter printed with copies going to the claimant, power of attorney, and if required, to the claims folder. With regard to the content of those letters, 38 C.F.R. § 3.103(e) (1986) specified that notice of a decision will include the reason for the decision, the date it was effectuated, the right to a hearing, and the right to initiate an appeal by filling a Notice of Disagreement. Accordingly, the presumption of regularity establishes that the Veteran was sent notification of the June 1987 rating decision, and that notice was in compliance with the requirements of 38 C.F.R. § 3.103(e) (1986). The Veteran has not provided clear evidence to rebut the presumption of regularity that VA personnel did not properly discharge their official duties in compliance with the regulations, statutes, and procedures in effect at the time of the June 1987 rating decision. His mere assertion that he does not recall receiving and / or did not receive the June 1987 computer-generated denial letter does not rise to the level of "clear evidence to the contrary," which is required to rebut the presumption of regularity. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (stating an appellant's statement of nonreceipt, without more, is not clear evidence that can be used to rebut the presumption of regularity). Additionally, the fact that the claims file did not contain a copy of the notification letter that was mailed to the Veteran also does not overcome the presumption of regularity as the adjudication manual indicates that the notification letters were only included in the claims file "if required." The Board notes that the June 1987 rating decision indicates a copy of the decision was provided to the Veteran's representative, Disabled American Veterans, and the second page of the rating includes the initials of the representative. Subsequent to notification of the June 1987 rating decision, the Veteran did not express disagreement with the June 1987 rating decision or submit new and material evidence within the appellate period. Accordingly, the June 1987 rating decision is final. See 38 U.S.C.A. § 4005(c) (West 1982); 38 C.F.R. §§ 3.104, 3.156, 19.129, 19.192 (1986). The Veteran also asserts that the June 1987 rating decision that denied service connection for a sinus condition contained CUE. Specifically, he asserts 1) that the June 1987 rating decision did not apply the proper law because his service treatment records (STR) document treatment for sinusitis during service and post-service treatment records showed treatment for sinus problems since service; 2) that the June 1987 rating decision did not apply the proper law because his STRs sufficed under 38 C.F.R. § 3.303 to establish a chronic condition; 3) that the June 1987 rating decision omitted crucial evidence; 4) that the June 1987 rating decision erred in denying service connection for a "sinus condition" rather than allergic rhinitis and / or sinusitis; 5) that the lower third of the June 1987 rating decision was altered and missing; 6) that the June 1987 rating decision relied on an inadequate May 1987 VA examination report; 7) that the June 1987 rating decision is invalid because it was not signed; 8) that the June 1987 rating decision erroneously revised the June 1985 rating; and 9) that the June 1987 rating decision contained an insufficient explanation for the denial. The Board finds that a brief overview of the procedural history of the case is warranted. In January 1985, the Veteran filed an original claim for service connection. The only claim listed was reactive airway disease (RAD). A June 1985 rating decision granted service connection for RAD with obstructive ventilator impairment. While not specifically claimed by the Veteran, the rating decision also granted service connection for hypertension. The Veteran's January 1985 VA Form 21-526 did not indicate that he sought service connection for a sinus condition, and neither the June 1985 rating decision nor July 1985 notification letter addressed service connection for a sinus condition. In March 1987, the Veteran submitted a letter noting that he was evaluated in February 1985 and found not to have a ratable "sinus condition," thus he was requesting a re-evaluation of his sinus condition to see if it was ratable at this time. The RO accepted the letter as a claim for service connection for a sinus condition, and an increased rating claim for his service-connected RAD and hypertension. The Veteran was afforded a VA examination in May 1987. On the medical history section of the examination report, the Veteran endorsed a history of sinus problems and sinus symptoms. He also noted a history of sinus treatment at the New Orleans VA Medical Center from December 1986 to January 1987. The examination findings section applicable for nose and sinuses contained no examination findings. A June 22, 1987 rating decision noted that the Veteran's STR showed complaints of "sinus, headaches, and fever" on August 5, 1981; an August 7, 1981 STR characterized these symptoms as a "viral syndrome." It further noted that the STRs were negative for a chronic sinus condition. The rating decision acknowledged that post-service VA treatment records documented reports of sinus discomfort and allergic rhinitis. The June 1987 rating decision denied service connection noting that a "chronic sinus condition was not shown in service." With regard to his first three assertions, the Veteran is essentially disagreeing with the manner in which the RO weighed and evaluated the evidence, which cannot support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The rating decision explicitly acknowledged that STRs showed sinus treatment, but nevertheless found that a chronic sinus disorder was not shown in service. The RO's conclusion was not clearly erroneous in light of the December 11, 1984 report of physical examination at separation that indicated clinical evaluation of the Veteran's nose and sinuses were normal at the time of his discharge from active duty. Concerning the post-service treatment records, the rating decision again expressly acknowledged the Veteran's post-service sinus complaints and treatment. Moreover, with regard to the Veteran's reference to a chronic disability and continuity of treatment, sinusitis is not a condition listed as chronic disability under 38 C.F.R. § 3.309(a) such that the presence in service and subsequent manifestation warrants service connection. 38 C.F.R. § 3.303(b). Consequently, the Veteran is disagreeing with the manner in which the RO weighed and evaluated the evidence of record, which cannot constitute CUE. Fugo, supra; see also Crippen v. Brown, 9 Vet. App. 412 (1996) (holding that disagreements as to how the facts are weighed do not constitute CUE). With regard to the Veteran's fourth CUE assertion, that the June 1987 rating decision erred in denying service connection for a "sinus condition" rather than a specific medical diagnosis, such as allergic rhinitis and / or sinusitis, the Veteran's March 1987 claim characterized his claimed disability as a "sinus condition." As suggested by separate diagnostic codes, sinusitis and rhinitis are distinct diseases. His claim at that time was for a sinus condition, not rhinitis. The RO adjudicated the claim he filed, and his argument amounts to no more than an argument with the reasons and bases for the decision and/or the weight assigned to the evidence. As such, the June 1987 rating decision's reference to a sinus condition, rather than sinusitis or allergic rhinitis, does not constitute CUE. See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (noting that it was not until 1989 that statutory provisions required that decisions denying benefits include a statement of the reasons for the decision). With regard to his fifth assertion that the June 1987 rating decision is invalid because it was altered, the Board finds no CUE in such "alteration." The lower part of page 1 of the rating decision was removed at the bottom where there was no writing. There was ample space between the last typewritten words and the removed portion. The undersigned Veterans Law Judge notes, based on personal experience as a prior rating specialist and Decision Review Officer at an RO, that it was common practice for the rating decision's first page to be cut off to permit the signature blocks of the last page of the rating decision to be visible. The 1987 rating decision included all pertinent items in the narrative ("J" for jurisdiction, "I" for issue, "F" for facts and "D" for decision). There is nothing that indicates anything further was typed after the two sentences in the Decision item. Indeed the amount of space between the last word in the Decision item and the bottom of the page is sufficient to indicate that no further discussion was provided. Moreover, prior to 1989, the RO did not have to provide detailed reasons and bases when denying a claim, supporting a finding that the two-sentence Decision was the complete discussion. See Id. The Veteran's sixth allegation of error is that the June 1987 rating decision relied on a deficient May 1987 VA examination. Specifically, he asserts that the RO ordered an incorrect medical examination because the examination request was limited to his RAD and hypertension disabilities and that the examiner did not incorporate the Veteran's self-reported medical history by examining and documenting his nose and sinus symptoms. The Veteran's arguments regarding the May 1987 VA examination are essentially an assertion that VA breached its duty to assist by relying on an inadequate examination report. Such an assertion cannot constitute the basis for a CUE motion. 38 C.F.R. § 20.1403(d)(2) (2017). Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) (holding that a breach of the duty to assist cannot constitute CUE); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). With regard to the Veteran's seventh assertion, that the June 1987 rating decision was invalid because it was unsigned, the second page of the rating decision, the "Rating Decision Continuation Sheet," contains the signatures of a "medical rating specialist," and two "rating specialists." The decision was also initialed by the Veteran's Disabled American Veterans representative at the time. Accordingly, the Veteran's contention is inaccurate and without merit. With regard to the eighth assertion, that the June 1987 rating decision improperly revised the June 1985 rating without a hearing or finding of CUE in that decision, the second page of the decision does state "rating of 6-17-85 is amended as follows." However, the only change reflected is an updated rating code sheet to indicate that the Veteran's sinus condition was a nonservice-connected condition. Moreover, as the June 1985 rating decision did not adjudicate the issue of entitlement to service connection for a sinus condition, even an improper revision of that rating decision would not result in a manifestly different result regarding the Veteran's sinus condition claim. As such, the Veteran's assertion regarding the improper "revision" of the June 1985 rating decision does not constitute CUE. With regard to the Veteran's ninth assertion, he essentially contends that the rationale contained in the June 1987 rating decision was inadequate because it was limited to a "[c]hronic sinus condition was not shown in service." As noted above, at the time of the June 1987 rating decision, a rating decision was not legally required to include a detailed statement of the reasons and bases for the denial. See Natali, 375 F.3d at 1380. As such, the Veteran's assertion does not constitute CUE. In light of the above, the Board finds that the Veteran has not identified an error in fact or law that, 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. Thus, the Board concludes that there was no CUE in the June 1987 denial of service connection for a sinus condition. ORDER The appeal as to the claim of clear and unmistakable error in the June 22, 1987 rating decision denying service connection for a sinus condition is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs