Citation Nr: 1805976 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-06 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether there was clear and unmistakable error in that part of the February 2005 rating action that denied service connection for residuals of pneumonia. 2. Whether there was clear and unmistakable error in that part of the August 2009 rating action that denied service connection for a heart disorder. 3. Whether new and material evidence has been received to reopen a previously denied claim for service connection for residuals of pneumonia. 4. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1952 to October 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Nashville Regional Office (RO) of the Department of Veterans Affairs (VA) that found that new and material evidence had not been received to reopen the previously denied claims for service connection for residuals of pneumonia and a heart disorder. In November 2015, the Board remanded the claims to reopen until intertwined issues of clear and unmistakable error (CUE) were either resolved or prepared for appellate consideration. By rating decision dated in September 2016, the agency of original jurisdiction (AOJ) determined that the February 2005 and August 2009 rating actions do not contain CUE. In May 2017, the Board remanded the claims for the issuance of a statement of the case on the issues of CUE. The AOJ issued a statement of the case in November 2017, and the Veteran perfected an appeal of the issues of CUE in December 2017. In a July 2011 statement, the Veteran raised the issue of entitlement to service connection for hypertension. The issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a February 2005 rating decision, the RO denied the claim for service connection for residuals of pneumonia; the Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. 2. The February 2005 rating decision indicates that the issue of whether the evidence before the RO at that time substantiated the claim for service connection for residuals of pneumonia is one that involved a weighing of the evidence and on which reasonable minds could differ. 3. In an August 2009 rating decision, the RO determined that new and material evidence had not been received to reopen the claim for service connection for residuals of pneumonia and denied the claim for service connection for a heart disorder; the Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. 4. The August 2009 rating decision indicates that the issue of whether the evidence before the RO at that time substantiated the claim for service connection for a heart disorder is one that involved a weighing of the evidence and on which reasonable minds could differ. 5. New evidence raising a reasonable possibility of substantiating the claim for service connection for residuals of pneumonia has not been received. 6. New evidence raising a reasonable possibility of substantiating the claim for service connection for a heart disorder has not been received. CONCLUSIONS OF LAW 1. The February 2005 rating decision that denied the claim for service connection for residuals of pneumonia is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017). 2. The February 2005 rating decision did not contain CUE by denying the claim for service connection for residuals of pneumonia. 38 U.S.C. §§ 5109A, 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 3.105 (2017); 38 C.F.R. §§ 3.303, 3.304 (2004). 3. The August 2009 rating decision that determined that new and material evidence had not been received to reopen the claim for service connection for residuals of pneumonia and denied the claim for service connection for a heart disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017). 4. The August 2009 rating decision did not contain CUE by denying the claim for service connection for a heart disorder. 38 U.S.C. §§ 5109A, 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 3.105 (2017); 38 C.F.R. §§ 3.303, 3.304 (2009). 5. New and material evidence has not been received to reopen the claim for service connection for residuals of pneumonia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. New and material evidence has not been received to reopen the claim for service connection for a heart disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice with respect to the claims to reopen in February 2011. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). VA's duties to notify and assist do not apply to CUE claims. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). CUE If the evidence establishes CUE in a prior RO rating decision, the decision will be reversed or amended. 38 C.F.R. §§ 3.104(a), 3.105(a) (2017). In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot, ipso facto, be clear and unmistakable. Fugo, 6 Vet. App. at 43-44 (citing Russell, 3 Vet. App. at 313-14). The basic requirements for establishing entitlement to service connection were the same in 2005 and 2009 as they are today. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004 & 2009). In this case, the Veteran asserts that there is CUE in the February 2005 and August 2009 rating actions by denying the claims for service connection for residuals of pneumonia and a heart disorder because the rating boards failed to provide him with VA examinations. However, any such failure to provide an examination pursuant to VA's duty to assist does not constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1344-46 (Fed. Cir. 2002). Moreover, the Board finds that the evidence of record shows that the February 2005 rating decision indicates that the issue of whether the evidence before the RO at that time substantiated the claim for service connection for residuals of pneumonia is one that involved a weighing of the evidence and on which reasonable minds could differ. While the service treatment records showed that the Veteran had pneumonia in service, they also showed that the pneumonia resolved prior to separation from service and there was no evidence showing that he had any residuals of pneumonia at the time of the February 2005 rating decision. Likewise, the Board finds that the evidence of record shows that the August 2009 rating decision indicates that the issue of whether the evidence before the RO at that time substantiated the claim for service connection for a heart disorder is one that involved a weighing of the evidence and on which reasonable minds could differ. While an in-service electrocardiogram report showed that the Veteran had sinus tachycardia, the report also showed that the tracing was within normal limits and there was no evidence showing that he had a heart disorder at the time of the August 2009 rating decision. Similarly, while the service treatment records showed that he had a heart murmur, it was determined to be a functional heart murmur, indicating no clinical significance. The fact that others may disagree with the way either the February 2005 or August 2009 rating board weighed the evidence does not constitute CUE. Thus, the Board denies the motions to revise the February 2005 and August 2009 rating decisions on the basis of CUE. Application to Reopen Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c), (d) (West 2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2012). "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is existing evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for residuals of pneumonia was originally denied in a February 2005 rating decision because while the evidence showed treatment for pneumonia in service, there was no evidence of any residuals of pneumonia or a link between any resultant disability and service. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2017). Thus, the decision became final. The Veteran attempted to reopen his claim in March 2009. An August 2009 rating decision determined that new and material evidence had not been received to reopen the claim. The Veteran was notified of the decision and of his appellate rights, but he again did not initiate an appeal. There is also no indication that new and material evidence was received within one year following that decision. Thus, that decision became final. The pertinent evidence received since the August 2009 rating decision includes VA medical records and statements from the Veteran noting that he had been treated for pneumonia in service and has scarring of his lungs due to pneumonia. While the medical records are new, they do not show that he has any residuals of pneumonia, to include any scarring of the lungs. Therefore, while new, the evidence is not material. His statements noting that he had pneumonia in service were previously of record and considered at the time of the prior denial. Therefore, as the evidence is redundant, it is not new. While the Veteran has stated that he has scarring of his lungs due to pneumonia, as indicated above, the medical evidence does not show that he currently has any residuals of pneumonia. In summary, no evidence of current pneumonia or any residuals thereof has been received. The Board thus finds that the new evidence does not help to establish that the Veteran currently has any residuals of pneumonia that had its onset in service or is otherwise related to service. Therefore, the new evidence, even when considered credible for the purpose of determining whether it is material, does not create a reasonable possibility of substantiating the claim and thus it is not material. Given the above, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for residuals of pneumonia. Thus, the claim remains denied. The claim for service connection for a heart disorder, to include sinus tachycardia (increased heart rate), was originally denied in an August 2009 rating decision. The claim was denied because while an in-service report of electrocardiogram showed sinus tachycardia, the report also showed that the tracing was within normal limits and there was no diagnosis of an actual heart disorder at that time or contained in any of the post-service medical records. While a heart murmur was also found, it was determined to be a functional heart murmur, indicating no clinical significance. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. Thus, the decision became final. The pertinent evidence received since the August 2009 rating decision includes VA medical records and statements from the Veteran noting that he had been treated for a heart disorder in service and is currently taking medication for a heart disorder. While the medical records are new, they do not show that he currently has a heart disorder. Therefore, while new, the evidence is not material. His statements noting that he was treated for a heart disorder in service were previously of record and considered at the time of the prior denial. Therefore, as the evidence is redundant, it is not new. While the Veteran has stated that he is currently taking medication for a heart disorder, the record shows that the medication is for hypertension, a claim for which is not on appeal. Therefore, while new, the evidence is not material. In summary, no evidence of a current heart disorder has been received. The Board thus finds that the new evidence does not help to establish that the Veteran currently has a heart disorder that had its onset in service or is otherwise related to service. Therefore, the new evidence, even when considered credible for the purpose of determining whether it is material, does not create a reasonable possibility of substantiating the claim and thus it is not material. Given the above, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for a heart disorder. Thus, the claim remains denied. ORDER The motion alleging CUE in that part of the February 2005 rating action that denied service connection for residuals of pneumonia is denied. The motion alleging CUE in that part of the August 2009 rating action that denied service connection for a heart disorder is denied. New and material evidence having not been received, the application to reopen the claim for service connection for residuals of pneumonia is denied. New and material evidence having not been received, the application to reopen the claim for service connection for a heart disorder is denied. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs