Citation Nr: 18141220 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-27 846 DATE: October 10, 2018 ORDER The December 17, 2008 Department of Veterans Affairs (VA) Regional Office (RO) rating decision assigning an initial noncompensable disability rating for service connected bilateral calcified pleural plaques as a result of asbestos exposure (pleural plaques) was not clearly and unmistakably erroneous (CUE). FINDING OF FACT The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the December 17, 2008 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time. CONCLUSION OF LAW The December 17, 2008 rating decision assigning an initial noncompensable disability rating for service connected pleural plaques was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from December 1964 to December 1968. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 23, 2013 rating decision of the RO in Milwaukee, Wisconsin, which found no CUE in the initial disability rating assigned for the service connected pleural plaques. 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. Whether CUE in December 17, 2008 Rating Decision Assigning Noncompensable Disability Rating for Pleural Plaques 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 outset, the Board notes that the December 17, 2008 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 allegation of CUE made by the Veteran is 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). Per the May 2013 statement in support of claim, the Veteran argues that the evidence at the time of the December 17, 2008 rating decision showed a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 75 percent, which warranted an initial 10 percent disability rating under Diagnostic Code 6833. At the time of the December 17, 2008 rating decision, the General Rating Formula for Interstitial Lung Disease then, as now, stated that when testing showed DLCO (SB) of 66- to 80 percent predicted, a 10 percent disability rating was warranted. 38 C.F.R. § 4.97, Diagnostic Code 6833 (2008). As noted in the August 2008 VA respiratory examination, in July 2008 the Veteran had a DLCO (SB) of 75 percent predicted; however, at the conclusion of the examination the VA examiner specifically opined that the Veteran’s pleural plaques were asymptomatic, and that it was more likely than not that the Veteran’s respiratory symptoms were due to non service connected respiratory disabilities. Per the December 17, 2008 rating decision, the RO specifically acknowledged the DLCO (SB) reading of 75 percent predicted in July 2008. The RO then discussed the fact that the VA examiner in August 2008, after relevant testing, assessed the service connected pleural plaques to be asymptomatic. As the service connected pleural plaques were asymptomatic, the RO found a noncompensable initial disability rating to be warranted under Diagnostic Code 6833. In the December 17, 2008 rating decision, the RO specifically acknowledged the Veteran’s July 2008 DLCO (SB) reading of 75 percent predicted. Then, after considering the other evidence of record, the RO found the VA examiner’s opinion in August 2008 that the service connected pleural plaques were asymptomatic, and that the DLCO (SB) reading was due to non service connected disabilities, to be of greater probative value, so assigned an initial noncompensable initial disability rating. As such, the Veteran’s argument that a 10 percent initial disability rating should have been assigned at the time of the December 17, 2008 RO rating decision appears to be simple disagreement with how the facts were weighed and evaluated; such disagreement is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. Review of the record reflects no other CUE arguments raised by the Veteran or representative; therefore, because the argument presented by the Veteran amounts to mere disagreement with how the facts were weighed and evaluated at the time of rating, which is explicitly not CUE under the relevant law, the Board finds there was no CUE in the December 17, 2008 rating decision assigning an initial noncompensable disability rating for service connected pleural plaques. Id. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel