Citation Nr: 1804586	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-05 029	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Denver, Colorado


THE ISSUES

1.  Whether a November 1990 rating decision, which denied a rating in excess of 30 percent for bowel dysfunction requiring self-digital stimulation, should be revised on the basis of clear and unmistakable error (CUE).

2.  Whether an August 1993 rating decision, which denied a rating in excess of 30 percent prior to May 24, 1993, and denied a rating in excess of 60 percent thereafter, for bowel dysfunction requiring self-digital stimulation, should be revised on the basis of CUE.

3.  Whether a November 1994 rating decision, which confirmed and continued the August 1993 rating decision denying a rating in excess of 30 percent prior to May 24, 1993, and denying a rating in excess of 60 percent thereafter, for bowel dysfunction requiring self-digital stimulation, should be revised on the basis of CUE.

4.  Whether a November 1990 rating decision, which denied a rating in excess of 30 percent for bladder dysfunction requiring self-catheterization, should be revised on the basis of CUE.

5.  Whether an August 1993 rating decision, which continued the denial of a rating in excess of 30 percent for bladder dysfunction requiring self-catheterization, should be revised on the basis of CUE.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

J. E. Miller, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Air Force from September 1969 to March 1990. The Veteran died in 2014. The Appellant is his surviving spouse and was substituted for the Veteran in February 2016.

This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision of the Denver, Colorado, Regional Office (RO).

The issues of an increased rating for the Veteran's bowel and bladder disorders have been raised by the record in the May 2012 notice of disagreement (NOD) and on the February 2013 VA Form 9, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for adjudication. 38 C.F.R. § 19.9(b) (2017).


FINDINGS OF FACT

1.  The Appellant has failed to show that the applicable statutory and regulatory provisions existing at the time of the November 1990 rating decision for bowel dysfunction requiring self-digital stimulation were incorrectly applied, such that they involved undebatable error, which had it not been made, would compel the conclusion, to which reasonable minds could not differ, that the decision would have been manifestly different but for the error.

2.  The Appellant has failed to show that the applicable statutory and regulatory provisions existing at the time of the August 1993 rating decision for bowel dysfunction requiring self-digital stimulation were incorrectly applied, such that they involved undebatable error, which had it not been made, would compel the conclusion, to which reasonable minds could not differ, that the decision would have been manifestly different but for the error.

3.  The Appellant has failed to show that the applicable statutory and regulatory provisions existing at the time of the November 1994 rating decision for bowel dysfunction requiring self-digital stimulation were incorrectly applied, such that they involved undebatable error, which had it not been made, would compel the conclusion, to which reasonable minds could not differ, that the decision would have been manifestly different but for the error.

4.  The Appellant has failed to show that the applicable statutory and regulatory provisions existing at the time of the November 1990 rating decision for bladder dysfunction requiring self-catheterization were incorrectly applied, such that they involved undebatable error, which had it not been made, would compel the conclusion, to which reasonable minds could not differ, that the decision would have been manifestly different but for the error.

5.  The Appellant has failed to show that the applicable statutory and regulatory provisions existing at the time of the August 1993 rating decision for bladder dysfunction requiring self-catheterization were incorrectly applied, such that they involved undebatable error, which had it not been made, would compel the conclusion, to which reasonable minds could not differ, that the decision would have been manifestly different but for the error.


CONCLUSIONS OF LAW

1.  The November 1990 rating decision for bowel dysfunction requiring self-digital stimulation did not contain CUE. 38 U.S.C. 5107, 7105 (2012); 38 C.F.R. §§ 4.71a, 4.114, Diagnostic Codes 5285, 7332 (1990); 38 C.F.R. §§ 3.104, 3.105(a) (2017).

2.  The August 1993 rating decision for bowel dysfunction requiring self-digital stimulation did not contain CUE. 38 U.S.C. 5107, 7105 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7332 (1993); 38 C.F.R. 3.104, 3.105(a) (2017).

3.  The November 1994 rating decision for bowel dysfunction requiring self-digital stimulation did not contain CUE. 38 U.S.C. 5107, 7105 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7332 (1994); 38 C.F.R. 3.104, 3.105(a) (2017).

4.  The November 1990 rating decision for bladder dysfunction requiring self-catheterization did not contain CUE. 38 U.S.C. 5107, 7105 (2012); 38 C.F.R. §§ 4.71a, 4.115a, Diagnostic Codes 5285, 7512, 7599 (1990); 38 C.F.R. §§ 3.104, 3.105(a), 4.115a, 4.115b, Diagnostic Code 7542 (2017).

5.  The August 1993 rating decision for bladder dysfunction requiring self-catheterization did not contain CUE. 38 U.S.C. 5107, 7105 (2012); 38 C.F.R. § 4.115a, Diagnostic Codes 7512, 7599 (1993); 38 C.F.R. §§ 3.104, 3.105(a), 4.115a, 4.115b, Diagnostic Code 7542 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

A motion to reverse or revise a final decision on the basis of CUE is not a claim for benefits but is rather a collateral attack on that decision, and, therefore, the VCAA does not apply to such an application. See Livesay v. Principi, 15 Vet. App. 165, 178-179 (2001) (holding that the VCAA does not apply to motions to revise or reverse a decision based on CUE).

II.  Analysis

The decision of a duly constituted rating agency or other AOJ shall be final and binding based on evidence on file at that time and will not be subject to revision on the same factual basis. 38 C.F.R. § 3.104(a); see also 38 U.S.C. § 5108. The only exception to this rule is when the decision is the result of CUE. 38 C.F.R. § 3.105(a); see also 38 U.S.C. § 7103(c) (the Board may correct obvious error on its own initiative). Under such circumstances, the decision will be reversed or amended, 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). If this exception does not apply, the decision is final and may be reopened only upon the presentation of new and material evidence. A determination on a claim by the AOJ of which the claimant is properly notified shall become final if an appeal is not perfected. 38 C.F.R. § 20.1103.

CUE arises where "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992). 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." Id.; see also Olson v. Brown, 5 Vet. App. 430, 433 (1993); Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). "A determination that there was [CUE] must be based on the record and the law that existed at the time of the prior . . . decision." Russell, 3 Vet. App. at 314; see Crippen v. Brown, 9 Vet. App. 412, 418 (1996). Moreover, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).

CUE is more than a difference of opinion. 38 C.F.R. § 3.105(b). A claimant seeking to obtain retroactive benefits by proving that VA has committed CUE in a decision has a much heavier burden than that placed upon a claimant who attempts to establish his or her prospective entitlement to benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion in a motion alleging CUE). For an allegation of CUE to be successful, it must be shown that the RO committed an error of law or fact that would compel later reviewers to the conclusion (to which reasonable minds could not differ) that the result would have been manifestly different but for the error. Elkins v. Brown, 8 Vet. App. 391, 396   (1995); see Eddy v. Brown, 9 Vet. App. 52, 57 (1996).
 
The doctrine of resolving reasonable doubt in favor of the Appellant is not for application. Yates v. West, 213 F.3d 1372 (2000). Further, it is the Appellant's burden of showing that CUE is present. King v. Shinseki, 26 Vet. App. 433, 439 (2014).

The Appellant contends that the Veteran's bowel and bladder disorders were underrated beginning with the November 1990 rating decision, which initially granted service connection, and continued to be underrated thereafter.

In June 1982, the Veteran was in a motorcycle accident while in service. A June 1989 Medical Evaluation Board examination report stated that the Veteran had a L1 vertebral fracture which affected his spinal cord and resulted in neurological deficit. An associated November 1989 narrative summary completed by an Air Force urologist stated that the Veteran's injury "left him with an inability to urinate or to have bowel movements." 

At the time of the November 1990 rating decision, residuals of vertebra fracture were rated according to diagnostic code 5285. A 100 percent rating was warranted for a vertebral fracture if there was spinal cord involvement and the injured individual was bedridden or required long leg braces. With lesser cord involvement, the residuals were to be rated on the basis of resulting definite limitation of motion and/or nerve paralysis. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (1990).

Based on the June 1989 Medical Evaluation Board examination report, the Veteran had a vertebral fracture with cord involvement. As he was not bedridden and did not require long leg braces, a 100 percent rating was not warranted. He, therefore, had lesser cord involvement and was to have any residuals rated on the basis of resulting nerve involvement. The Veteran's bowel and bladder disorders were caused by his nerve impairment and were properly separately rated as residuals of the vertebral fracture.

A.  Bowel Dysfunction Requiring Self-Digital Stimulation

The Appellant's allegation of CUE in the November 1990, August 1993, and November 1994 decisions is based on the assertion that the Veteran had to use digital stimulation to evacuate his bowels which she contends equates to a complete loss of sphincter control, which would entitle him to a 100 percent rating.

The rating criteria for impairment of rectal and anal sphincter was the same in November 1990, August 1993, and November 1994, as it is now. A 30 percent rating was warranted for impairment which caused occasional involuntary bowel movements, necessitating wearing of a pad. A 60 percent rating was warranted for impairment which caused extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating was warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332 (1990, 1993, 1994).

The November 1989 narrative summary associated with the Medical Evaluation Board examination report stated that the Veteran's vertebral fracture had left him with an inability to have bowel movements. He was able to have a bowel movement every third day using digital stimulation of a sensor point. The final diagnosis was bowel dysfunction  manifested by an inability to empty. An April 1990 VA examination report stated that the Veteran continued to have bowel movements approximately every three days using digital stimulation. He reported that approximately 40 percent of the time, his bowel movements came earlier than planned. He used eight packets of Metamucil each day, had problems with gas in his intestines, and sometimes used an over-the-counter anti-gas medication. The digital stimulation caused hemorrhoids.

The November 1990 decision, which rated the Veteran's bowel disorder at 30 percent due to occasional involuntary bowel movements, was not clear and unmistakable error. Given that his bowel movements came earlier than planned only 40 percent of the time and given that he could not have a bowel movement without digital stimulation, it was not undebatable that he had extensive leakage and fairly frequent involuntary bowel movements. It is, therefore, not undebatable that the Veteran should have been rated in excess of 30 percent. Additionally, he was provided a separate rating for his hemorrhoids which he did not appeal and has not asserted involved clear and unmistakable error. The decision to not rate the Veteran's bowel disorder at 60 percent is something on which reasonable minds could differ. This is merely a difference of opinion between the Appellant and the RO as to which rating most closely approximated the Veteran's symptoms. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the November 1990 rating decision should not be revised on the basis of CUE.

A June 1993 VA examination report stated that the Veteran continued to use self-digital stimulation to have a bowel movement. The time to complete the evacuation of his bowels had increased from 1-2 hours to 3-4 hours. He had to spend that entire period of time on the toilet. He performed the procedure every other day, but approximately one time per week, he had to complete the procedure two days in a row. At these times he had incontinence but he did not wear a pad. He did, however, have some diarrhea and cramping at those times. When he had diarrhea, it was usually a small amount of fecal material although he had full bowel evacuation on a couple of occasions.

The August 1993 decision, which rated the Veteran's disorder at 30 percent prior to May 24, 1993, and at 60 percent thereafter, but no higher, due to extensive leakage and fairly frequent involuntary bowel movements, was not clear and unmistakable error. Given that he had fecal incontinence only once per week and only sometimes had diarrhea, it is not undebatable that he had complete loss of sphincter control. The fact that he required digital stimulation to have bowel movements indicates that his sphincter muscle had not lost complete control. It was therefore not clear and unmistakably erroneous to rate the Veteran's disorder no higher than 60 percent. The decision to not rate the Veteran 100 percent is something on which reasonable minds could differ. This is merely a difference of opinion between the Appellant and the RO as to which rating most closely approximated the Veteran's symptoms. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the August 1993 rating decision should not be revised on the basis of CUE.

A September 1994 VA treatment record indicates that the Veteran was hospitalized to test his tolerance for bowel evacuation using a Pulsed Irrigation Evacuation (PIE) machine. The Veteran reported at that time that he had decreased effectiveness using digital stimulation and, since December 1993, the procedure took at least 5 to 7 hours, 3 times per week. He had decreased sensation in the perianal area and decreased tone in the sphincter. The September 1994 VA treatment record indicated that the Veteran tolerated the PIE machine procedure well and he was discharged to use the machine independently at his home. He was advised to use two suppositories the night prior to using the PIE machine and that he should use the machine every 2-3 days.

The November 1994 rating decision confirmed and continued the August 1993 rating decision. The decision to continue to rate the Veteran's disorder at 30 percent prior to May 24, 1993, and at 60 percent thereafter, but no higher, was not clear and unmistakable error. He had decreased sensation in his sphincter and required digital stimulation and the PIE machine for bowel movements. Decreased sensation is not clearly and unmistakably complete loss of sphincter control. The fact that he required digital stimulation and use of the PIE machine to evacuate his bowels indicates that his sphincter muscle had not lost complete control. It was, therefore, reasonable to rate the Veteran's disorder no higher than 60 percent. The decision to not rate the Veteran 100 percent is something on which reasonable minds could differ. This is merely a difference of opinion between the Appellant and the RO as to which rating most closely approximated the Veteran's symptoms. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the November 1994 rating decision should not be revised on the basis of CUE.

The Appellant contends that because the Veteran's symptoms required him to use self-stimulation in order to evacuate his bowels, he was entitled to a 100 percent rating since the grant of service connection in November 1990. The Appellant asserts that the inability to evacuate the bowels without assistance "equates to a complete loss of sphincter control." However, a complete loss of sphincter control results in fecal incontinence and an inability to control when the individual evacuates their bowels. The Veteran, however, had the opposite problem in that he required intervention in order to evacuate his bowels. Therefore, the Veteran obviously did not have complete loss of sphincter control. 

The Appellant also asserts that the definition of loss of anal and bladder sphincter control when determining availability of special monthly compensation (SMC) for paraplegia, under 38 C.F.R. § 3.350(e)(2), should define the meaning of loss of anal sphincter control for rating purposes. That regulation states that loss of use of bowel and bladder exists even if incontinence has been overcome with a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. The requirements for SMC, however, are different than the requirements for a 100 percent schedular rating and the two are different benefits that convey different rights on the Veteran. Therefore, the definitions of the SMC requirements cannot be used to explain or clarify the requirements for a 100 percent rating. 

Based on the above, the ratings assigned in the November 1990, August 1993, and November 1994 decisions do not constitute CUE. Instead, the Appellant merely has a different opinion than the RO did as to which ratings most closely approximated the Veteran's symptoms during the relevant periods. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the CUE petitions are denied.

B.  Bladder Dysfunction Requiring Self-Catheterization

The Appellant's allegation of CUE in the November 1990 and August 1993 decisions is based on the assertion that the Veteran had to use self-catheterization in order to void his bladder, which the Appellants contends indicated a voiding dysfunction.

The November 1990 and August 1993 decisions rated the Veteran's bladder disorder by analogy to chronic cystitis under diagnostic code 7512. At the time of the rating decisions, a 20 percent rating was warranted for moderately severe cystitis with diurnal and nocturnal frequency with pain and tenesmus. A 40 percent rating was warranted for severe chronic cystitis with urination at intervals of 1 hour or less and a contracted bladder. A 60 percent rating was warranted for incontinence requiring the constant wearing of an appliance. 38 C.F.R. § 4.115a, Diagnostic Code 7512 (1990, 1993).

The November 1989 narrative summary associated with the Medical Evaluation Board examination report stated that the Veteran's vertebral fracture had left him with an inability to urinate. He was only able to urinate using intermittent catheterization approximately 6 times per day. The final diagnosis was bladder dysfunction manifested by an inability to empty. An April 1990 VA examination report stated that the Veteran continued to use intermittent self-catheterization every 3-4 hours to empty his bladder.

The November 1990 decision, which denied a rating in excess of 30 percent for the Veteran's bladder disorder was not clear and unmistakable error. The Veteran was urinating every 3-4 hours, not at intervals of 1 hour or less, did not have a contracted bladder, and did not require the constant wearing of an appliance. Although he had to self-catheterize every 3-4 hours, the use of this device was only intermittent and only at the times when he was emptying his bladder. The denial of a rating in excess of 30 percent is not clear and unmistakable error and it is not undebatable that a higher rating was warranted. This is merely a difference of opinion between the Appellant and the RO as to which rating most closely approximated the Veteran's symptoms. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the November 1990 rating decision should not be revised on the basis of CUE.

The June 1993 VA examination report stated that the Veteran used self-catheterization every 3 hours to void his bladder. He was beginning to develop scar tissue as a result and had had one bladder infection in the prior couple of years. He had not been on antibiotics regularly, however, never had had any urinary incontinence, and had never used pads.

The August 1993 decision, which continued to deny a rating in excess of 30 percent for the Veteran's bladder disorder was not clear and unmistakable error. The Veteran was urinating every 3 hours, not at intervals of 1 hour or less, did not have a contracted bladder, and did not require the constant wearing of an appliance. Although he had to self-catheterize every 3 hours, the use of this device was only intermittent and only at the times when he was emptying his bladder. He also did not wear pads or require regular use of antibiotics. The denial of a rating in excess of 30 percent is not clear and unmistakable error and it is not undebatable that a higher rating was warranted. This is merely a difference of opinion between the Appellant and the RO as to which rating most closely approximated the Veteran's symptoms. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the August 1993 rating decision should not be revised on the basis of CUE.

The decision by the RO to rate the Veteran's bladder disorder by analogy to chronic cystitis under 38 C.F.R. § 4.115a, Diagnostic Code 7512 (1990, 1993), is also not clear and unmistakable error. There are several other diagnostic codes that are used for rating genitourinary disorders. When a diagnostic code directly reflecting the Veteran's disorder is not listed, the disorder must be rated by analogy. It is not undebatable that the decision to rate by analogy to the diagnostic code for chronic cystitis was incorrect. This diagnostic code for chronic cystitis provides ratings for bladder dysfunction and urination symptoms. These symptoms were also present in the Veteran's disorder and, therefore, it was reasonable, and not clear and unmistakable error, for the RO to rate by analogy to this diagnostic code. 

The Appellant contends that it was clear and unmistakable error not to rate the Veteran under diagnostic code 7542, the current code for neurogenic bladder. This diagnostic code did not come into effect until February 17, 1994. The Appellant also contends that the Veteran's bladder disorder should be rated 60 percent for voiding dysfunction under the current version of 38 C.F.R. § 4.115a. Again, the current rating criteria for genitourinary disorders that provides ratings for voiding dysfunction did not come into effect until February 17, 1994. "A determination that there was [CUE] must be based on the record and the law that existed at the time of the prior . . . decision." Russell, 3 Vet. App. at 314. As the Appellant's arguments are based on the law currently in effect, and not the law in effect at the time of the November 1990 and August 1993 rating decisions, there cannot be CUE for failure to rate the Veteran for a neurogenic bladder under diagnostic code 7542 or for failing to rate him at 60 percent for voiding dysfunction.

As with the Veteran's bowel disorder, the Appellant asserted that the definition of loss of anal and bladder sphincter control when determining availability of SMC for paraplegia, under 38 C.F.R. § 3.350(e)(2), should define the meaning of loss of bladder sphincter control for rating purposes. As stated above, the requirements for SMC, however, are different than the requirements for a 60 percent schedular rating and the two are different benefits that convey different rights on the Veteran. Therefore, the definitions of the SMC requirements cannot be used to explain or clarify the requirements for a 60 percent rating. 

Based on the above, the ratings assigned in the November 1990 and August 1993 decisions do not constitute CUE. Instead, the Appellant merely has a different opinion than the RO did as to which rating most closely approximated the Veteran's symptoms during the relevant periods. A difference of opinion is not CUE. See 38 C.F.R. § 3.105(b). Therefore, the CUE petitions are denied.






ORDER

The petition to revise a November 1990 rating decision, which denied a rating in excess of 30 percent for bowel dysfunction requiring self-digital stimulation, on the basis of CUE is denied.

The petition to revise an August 1993 rating decision, which denied a rating in excess of 30 percent prior to May 24, 1993, and denied a rating in excess of 60 percent thereafter, for bowel dysfunction requiring self-digital stimulation, on the basis of CUE is denied.

The petition to revise a November 1994 rating decision, which confirmed and continued the August 1993 rating decision denying a rating in excess of 30 percent prior to May 24, 1993, and denying a rating in excess of 60 percent thereafter, for bowel dysfunction requiring self-digital stimulation, on the basis of CUE is denied.

The petition to revise a November 1990 rating decision, which denied a rating in excess of 30 percent for bladder dysfunction requiring self-catheterization, on the basis of CUE is denied.

The petition to revise an August 1993 rating decision, which continued to deny a rating in excess of 30 percent for bladder dysfunction requiring self-catheterization, on the basis of CUE is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs