Citation Nr: 1803618 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-13 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the effective date of December 9, 2011 for the 50 percent evaluation for posttraumatic stress disorder with substance and alcohol abuse was a clear and unmistakable error (CUE). 2. Whether the effective date of service connection establishment for compensation for a skin disorder was CUE. 3. Entitlement to service connection for hernia condition as secondary to service-connected posttraumatic stress disorder (PTSD) with substance and alcohol abuse. 4. Entitlement to service connection for scar, status-post hernia surgery. 5. Entitlement to service connection for hypertension to include as secondary to service-connected PTSD with substance and alcohol abuse. 6. Entitlement to service connection for obstructive sleep apnea also claimed as sleep disorder/hypersomnia secondary to service-connected PTSD. 7. Entitlement to a disability rating in excess of 50 for PTSD. 8. Entitlement to an initial compensable disability rating for erectile dysfunction. 9. Entitlement to an initial disability rating in excess of 10 percent for psoriatic arthritis, lumbosacral spine. 10. Entitlement to an initial disability rating in excess of 10 percent for psoriatic arthritis, left knee. 11. Entitlement to an initial disability rating in excess of 30 percent for psoriatic arthritis, status post total right knee replacement. 12. Entitlement to an initial disability rating in excess of 30 percent for eczema, also shown as epidermophytosis pedis with pigmentation right thigh and right leg (claimed as skin and rash condition) prior to September 24, 2009, and in excess of 60 percent thereafter. 13. Entitlement to an initial a compensable disability rating left fifth toe amputation. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and Wife ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In March 2017, the Veteran and his wife testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is included in the claims file. The issues of entitlement to service connection for hernia repair, hernia scar, sleep apnea, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During a March 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw the issues of entitlement to increased ratings for dermatitis, left fifth toe amputation, PTSD, erectile dysfunction, right knee, left knee, and lumbosacral spine. 2. The Veteran's September 1984 claim of service connection for a skin disorder was denied in a January 1985 rating decision. The Veteran did not submit a substantive appeal, and new and material evidence was not received during the appeal period. The January 1985 rating decision became final. 3. The January 1985 rating decision that denied service connection for a skin disorder was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. 4. In an August 2007 rating decision, the RO granted service connection and assigned an initial disability rating of 30 percent for PTSD. The Veteran did not submit a substantive appeal, and new and material evidence was not received during the appeal period. The August 2007 rating decision became final. 5. The August 2007 rating decision that denied a higher than 30 percent evaluation for PTSD was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. CONCLUSIONS OF LAW 1. For the issue of entitlement to an increased rating for PTSD, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. For the issue of entitlement to an increased rating for erectile dysfunction, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. For the issue of entitlement to an increased rating for psoriatic arthritis, lumbosacral spine, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. For the issue of entitlement to an increased rating for psoriatic arthritis, left knee, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. For the issue of entitlement to an increased rating for psoriatic arthritis, status-post right knee replacement, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. For the issue of entitlement to an increased rating for eczema, left knee, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. For the issue of entitlement to an increased rating for left fifth toe amputation, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 8. The January 1985 rating decision denying service connection for a skin disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 9. The January 1985 rating decision denying service connection for a skin disorder was not the product of CUE. 38 U.S.C. §§ 5109A, 5110 (2012); 38 C.F.R. §§ 3.105, 3.400 (2017). 10. The August 2007 rating decision granting service connection for PTSD and assigning an initial 30 percent disability rating is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 11. The August 2007 rating decision assigning an an initial 30 percent disability rating, for the award of service connection for PTSD was not the product of CUE. 38 U.S.C. §§ 5109A, 5110 (2012); 38 C.F.R. §§ 3.105, 3.400 (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the issues of entitlement to increased ratings for eczema, left fifth toe amputation, PTSD, erectile dysfunction, right knee, left knee, and lumbosacral spine and, hence, there remain no allegations of errors of fact or law for appellate consideration. See Board Transcript (March 30, 2017). Accordingly, the Board does not have jurisdiction to review the appeal and the claims are dismissed. II. CUE General Legal Criteria The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Once a rating decision is final, a challenge to the effective date or rating assigned may only be entertained on the basis of CUE. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). From the date of notification of an RO decision, the claimant has one year to submit new evidence or to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.302. In this regard, the decision becomes final if the Veteran does not express disagreement with or new relevant evidence is not associated with the claims file within one year of the mailing of the rating decision to the Veteran. 38 C.F.R. § 20.302. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Furthermore, 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 a determination that there was CUE must be based on the record and law that exited at the time of the prior adjudication in question. Id. Simply to contend 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. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of 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. More succinctly, CUE is an error which undebatable. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior decision is based on the record and law that existed when that decision was made. See Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43; Russell, 3 Vet. App. at 313-14. See also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105. Revision of a decision on the grounds of CUE is warranted only when there has been an error in the adjudication of the claim that, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See, e.g., 38 C.F.R. § 20.1403(c) (pertaining to CUE in Board decisions). The following are examples of situations that are not CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in the decision; (2) the Secretary's failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). A. Service Connection for Eczema The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. But, unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110 (a). Service connection is currently effective as of March 12, 2007. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105. The Veteran asserts that there was CUE in a January 1985 rating decision for failing to grant service connection for a skin disorder. At the time of the January 1985 rating decision, the evidence of record included service treatment records, VA treatment records from March to September 1983, and a December 1984 VA examination. Service treatment records are negative for any complaints, treatment, or diagnosis of a skin disorder. During the December 1984 VA examination, the Veteran reported that for the last 10 years he has had a recurrent rash on his arms, right lower extremity, lower back, and right foot. He stated he was unsure if he had any skin rash while in service. After a physical examination, the diagnoses were pigmentation of the right thigh and right leg, and epidermo-phytosis pedis. The Board finds that the Veteran's assertion that the January 1985 rating decision should have granted service connection for a skin disorder to be a disagreement with the weighing of the evidence and the factual determinations the RO reached, and the law provides that a mere disagreement as to how the facts were weighed or evaluated by the RO cannot constitute CUE. 38 C.F.R. § 20.1403 (d). A claim of CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, as the Veteran's contention that the evidence of record at the time warranted granting service connection for a skin disorder, is a mere disagreement with the RO's evaluation of the facts before it, this contention does not give rise to a finding of CUE. The Board finds that the January 1985 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. As such, the Board finds that the Veteran fails to establish factual or legal error rising to the level of CUE in the January 1985 rating decision that did not award service connection for a skin disorder. Hence, the criteria have not been met for reversing or revising that prior decision on the basis of CUE. As has been discussed in the law and regulations section cited above, the assignment of an effective date for service connection is in essence governed by the date of filing with VA of a claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board's inquiry thus is limited by operation of law to whether a claim for entitlement to service connection for a skin disability was warranted with VA before the current effective date of the award in question. The Board finds that a date earlier than March 12, 2007 is not warranted for the grant of service connection for a skin disorder. Although the Veteran did file his original claim of service connection in September 1984, the RO denied his claim in January 1985 and he did not appeal that decision. The Board notes that the Veteran filed to reopen this issue in March 2007, more than one year following the January 1985 denial. As discussed above, an effective date of the original date of claim cannot be granted. In summary, the preponderance of the evidence is against the claim for entitlement to an effective date prior to March 12, 2007 for the grant of service connection for a skin disorder. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Increased Rating for PTSD Specific Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). PTSD is evaluated under Diagnostic Code 9411 which is rated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). The veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1 (2006); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). At the time of the August 2007 rating decision, the evidence of record included private treatment records from June 1999 to October 2001 and April 2005 to February 2007, VA treatment records from November 2006 to February 2007, and an April 2007 VA examination. The private treatment records did not provide any information regarding the current severity of the Veteran's PTSD. The VA treatment records indicate the Veteran was initially evaluated for symptoms of PTSD in February 2007. During the February 2007 VA mental health evaluation, the examiner noted the Veteran was cooperative, verbal, and dysphoric with normal speech, coherent and logical thoughts, intact memory and concentration, and fair insight and judgment. There was no evidence of suicidal or homicidal ideation. The assessment indicated PTSD. During the April 2007 VA examination, the Veteran reported that other than with his family he does not socialize. He stated he enjoys cooking, yardwork, and watching sports on the television. The Veteran reported he was arrested for assault and has been involved in physical altercations as late as 2005. The examiner noted no use of alcohol or other substances. Upon mental status evaluation, the Veteran was clean and casually dressed. His psychomotor activity was unremarkable and his speech was spontaneous. His affect was appropriate and his mood was good. He was oriented and his attention was intact. Thought process and content were noted as unremarkable. He denied hallucinations. The Veteran complained of nightmares and night sweats. The Veteran also denied obsessive/ritualistic behaviors, panic attacks, homicidal thoughts, suicidal thoughts, and problems with activities of daily living. The examiner noted he was able to maintain minimum personal hygiene and his impulse control was fair with episodes of violence. His memory was noted as normal. The diagnosis was PTSD. The examiner described the effects of PTSD on occupational and social functioning as an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. The findings of the VA examiner and the VA treatment records were considered by the RO in awarding a 30 percent rating in the August 2007 rating decision. The RO noted the Veteran's symptoms as well as the finding of the VA examiner which described the effects of PTSD as an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks, warranting a 30 percent disability rating. The Board finds that the Veteran's assertion that the August 2007 rating decision should have granted a disability rating in excess of 30 percent for PTSD to be a disagreement with the weighing of the evidence and the factual determinations the RO reached, and the law provides that a mere disagreement as to how the facts were weighed or evaluated by the RO cannot constitute CUE. 38 C.F.R. § 20.1403 (d). A claim of CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, as the Veteran's contention that the evidence of record at the time warranted a higher initial disability rating, is a mere disagreement with the RO's evaluation of the facts before it, this contention does not give rise to a finding of CUE. The Board finds that the August 2007 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. As such, the Board finds that the August 2007 rating decision that did not award a disability rating in excess of 30 percent for PTSD. Hence, the criteria have not been met for reversing or revising that prior decision on the basis of CUE. In summary, the preponderance of the evidence is against the claim for entitlement to an effective date prior to January 9, 2011 for the grant of an increased rating of 50 percent for PTSD. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for PTSD on the basis of CUE in an August 2007 rating decision is denied. Entitlement to an effective date prior to March 12, 2007 for service connection for a skin disability on the basis of CUE in the January 1985 rating decision that initially denied service connection is denied. Entitlement to a disability rating in excess of 50 for PTSD is dismissed. Entitlement to an initial compensable disability rating for erectile dysfunction is dismissed. Entitlement to an initial disability rating in excess of 10 percent for psoriatic arthritis, lumbosacral spine, is dismissed. Entitlement to an initial disability rating in excess of 10 percent for psoriatic arthritis, left knee, is dismissed. Entitlement to an initial disability rating in excess of 30 percent for psoriatic arthritis, status post total right knee replacement, is dismissed. Entitlement to an initial disability rating in excess of 30 percent for eczema, also shown as epidermophytosis pedis with pigmentation right thigh and right leg (claimed as skin and rash condition) prior to September 24, 2009, and in excess of 60 percent thereafter, is dismissed. Entitlement to an initial a compensable disability rating left fifth toe amputation is dismissed. REMAND The Veteran asserts he has a hernia either due to service or aggravated by his service-connected PTSD. Additionally, the Veteran asserts his sleep apnea and hypertension are caused or aggravated by his service-connected PTSD. The Veteran underwent a VA examination in September 2013. The VA examiner stated "there are no large numbered, clinically evidence-based studies with designed endpoints and broadly accepted medical acknowledgement that PTSD causes hypertension, inguinal hernia, or sleep apnea." The examiner failed to give an opinion as to whether the Veteran's hernia was incurred during active service, especially in light of the fact that medical evidence shows treatment for a hernia within a few months of separation from service. The VA examiner also failed to address whether the Veteran's service-connected PTSD aggravates his hypertension or obstructive sleep apnea. Therefore, the Board finds a remand is necessary for addendum opinions. Regarding the issue of service connection for a hernia scar, the Board notes the matter is intertwined with the issue of entitlement to service-connection of a hernia; as such, the claim will also be remanded. See Shields v. Brown, 8 Vet. App. 346, 350-51 (1995); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may have additional evidence pertinent to his claims. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran, for which he has provided any necessary authorization, that have not been previously secured and associate them with the claims folder. 2. After the development ordered in paragraph 1 above is completed, obtain a supplemental by opinion by an appropriate clinician in connection with the claims of service connection for sleep apnea, hypertension, and hernia. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the opinion. An opinion should be provided as to the following: a. Whether it is at least as likely as not that the Veteran's service-connected PTSD has made the Veteran's hernia, hypertension, or obstructive sleep apnea chronically worse (i.e., aggravated). b. Whether it is at least as likely as not that the Veteran's hernia was incurred during active service. The examiner should specifically refer to the Veteran's assertion that a hernia was diagnosed within weeks of separation from service and the objective evidence of hernia surgery in October 1968. A complete rationale for the opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. 3. The AOJ must ensure that all opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs