Citation Nr: 18140404 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-10 240 DATE: October 3, 2018 ORDER As the April 30, 2013 Reginal Office (RO) rating decision contained clear and unmistakable error (CUE) in the denial of service connection for residuals of a cerebrovascular accident, the April 30, 2013 rating decision is revised to reflect a grant of service connection for residuals of a cerebrovascular accident, effective April 30, 2012. FINDING OF FACT An April 30, 2013 rating decision denying service connection for residuals of a cerebrovascular accident was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual and legal error, the outcome would have been manifestly different, namely, service connection for residuals of a cerebrovascular accident would have been assigned from April 30, 2012, the date of claim. CONCLUSION OF LAW The April 30, 2013 rating decision denying service connection for residuals of a cerebrovascular accident was clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.102, 3.310 (2013); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1966 to January 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) RO in New Orleans, Louisiana, which found no CUE in an April 2013 rating decision that denied service connection for residuals of a cerebrovascular accident (stroke). The Veteran testified from New Orleans, Louisiana, at a February 2018 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. CUE in April 30, 2013 RO Rating Decision Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) 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 (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the time of the April 2013 rating decision, then, as now, service connection could be granted for disability that was proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310. Further, when all the evidence was assembled, VA was responsible for determining whether the evidence supported the claim or was in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence was against the claim, in which case, the claim would be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board finds that the April 30, 2013, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Specifically, the Veteran argues that the RO failed to consider the significant evidence indicating that the Veteran had been treated for and/or diagnosed with diabetes mellitus, type II, prior to the 2001 cerebrovascular accident. The Veteran argues that, had the RO considered the evidence and properly applied 38 C.F.R. § 3.102, it is undebatable that the RO would have resolved reasonable doubt in favor of the Veteran and granted service connection for residuals of a cerebrovascular accident, as secondary to the service connected diabetes mellitus, type II. At the time of the April 30, 2013 rating decision, the Veteran was service connected for diabetes mellitus, type II. The Veteran received a VA central nervous system examination in April 2013. At the conclusion of the examination, and after reviewing the evidence of record, the VA examiner opined that it was as likely as not that the Veteran suffered a mild cerebrovascular accident in the right lower extremity in 2001. The VA examiner then went on to opine that it was as likely as not that the mild cerebrovascular accident in the right lower extremity was due to the service connected diabetes. Per the VA examiner, small vessel disease causing small strokes of the nature suffered by the Veteran affecting only one extremity are common in diabetic small vessel disease. Despite the positive secondary service connection opinion, the RO denied service connection on a secondary basis because the medical evidence showed that the Veteran was not diagnosed with diabetes mellitus, type II, until 2003, which was after the 2001 cerebrovascular accident in the right lower extremity. Having reviewed all the evidence of record, lay and medical, the Board finds that the RO undebatably committed both factual and legal error when it failed to consider the significant evidence of record indicating that the Veteran was diagnosed with, and treated for, diabetes mellitus, type II, prior to 2001. The RO failed to apply 38 C.F.R. § 3.102 to find the evidence at least in equipoise on the question of whether the Veteran was diagnosed with, and treated for, diabetes mellitus, type II, prior to 2001, and then resolve reasonable doubt in the Veteran’s favor. Had such legal and factual error not been made, it is undebatable that the outcome would have manifestly changed, and service connection would have been granted for residuals of a cerebrovascular accident on a secondary basis (under 38 C.F.R. § 3.310). The evidence of record reflects that for years prior to the April 30, 2013 rating decision the Veteran advanced in numerous lay statements having been diagnosed with, and treated for, diabetes mellitus, type II, in 1994 and 1999. Per the Veteran, treatment was received from a Dr. BC. Per multiple VA treatment records, the Veteran’s active problems list reported that the Veteran was diagnosed with diabetes mellitus, type II, by Dr. BC in October 2003; however, prior to the April 30, 2013 RO rating decision, the Veteran submitted a VA treatment record from 2001 indicating that the Veteran was first diagnosed, by Dr. BC, with diabetes in July 1999. Additional evidence indicating that the Veteran was diagnosed with diabetes mellitus, type II, prior to 2001 includes the report from an April 2005 VA diabetes mellitus examination. Per the examination report, the Veteran was diagnosed with diabetes in 1994. Further, the VA examiner at the time of the April 2013 VA central nervous system examination also noted that the Veteran had been diabetic since at least 1999. Considering the above evidence, the Board finds that there was sufficient evidence at the time of the April 30, 2013 rating decision for the RO to find the evidence at least in equipoise on the question of whether the Veteran was first diagnosed with diabetes mellitus, type II, prior to 2001. The evidence of record reflects that the RO committed factual error in the April 30, 2013 rating decision when it failed to consider the evidence of record indicating that the Veteran was diagnosed with and/or treated for diabetes mellitus, type II, prior to 2001, and it committed legal error when it failed to properly apply 38 C.F.R. § 3.102 and find the evidence at least in equipoise on the question of whether the Veteran’s diabetes mellitus, type II, was diagnosed prior to the 2001 cerebrovascular accident. It is undebatable that, had the RO not made these factual and legal errors, the outcome of the rating decision would have been manifestly different; therefore, the Board concludes that the RO committed clear and unmistakable error in the April 30, 2013 rating decision denying service connection for residuals of a cerebrovascular accident. The April 30, 2013 rating decision will be revised to reflect a grant of service connection for residuals of a cerebrovascular accident, as secondary to the service connected diabetes mellitus, type II, effective April 30, 2012, the date of claim. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel