Citation Nr: 18141230 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-25 503 DATE: October 10, 2018 ORDER The May 11, 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for histoplasmosis 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 May 11, 2009 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time. CONCLUSION OF LAW The May 11, 2009 rating decision denying service connection for histoplasmosis 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 February 1976 to November 1985. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the RO in Roanoke, Virginia, which found no CUE in a May 11, 2009 rating decision denying service connection for histoplasmosis. 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 May 11, 2009 Rating Decision to Deny Service Connection for Histoplasmosis 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 May 11, 2009, 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). Further, the Board also finds the allegations of CUE made by the Veteran 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). During the course of this appeal, the Veteran has submitted multiple lay statements concerning the CUE issue, many of which are muddled with other issues not currently before the Board. Having reviewed all of these statements, including argument found within a November 2014 lay statement, the Board finds the Veteran’s CUE argument is essentially as follows: the RO, at the time of the May 11, 2009 rating decision, did not consider all the relevant evidence of record and, had it done so, would have resolved reasonable doubt in favor of the Veteran to grant service connection for histoplasmosis. In October 2008, the Veteran submitted a claim for service connection for histoplasmosis. Per the Veteran’s statement, symptoms of histoplasmosis did not manifest until August 2006, when treatment began. Along with the claim, the Veteran submitted an October 2008 opinion from a VA physician. The VA physician attributed the Veteran’s histoplasmosis to either the Veteran’s in service hobby of working with homing pigeons or from post service hazardous exposure while home remodeling during the period from 1991 to 1993. In a subsequent March 2009 lay statement, the Veteran’s wife submitted a lay statement concerning the Veteran’s homing pigeon hobby during service. The RO issued a rating decision denying service connection for histoplasmosis in May 2009. Per the rating decision, the RO considered the Veteran’s VA treatment records beginning in August 2006, the service treatment records, the VA physician’s opinion letter, and the submitted lay statements. After stating that that service treatment records were silent for histoplasmosis or any chronic lung disorder during service, the RO noted that histoplasmosis was not diagnosed until 2006, which was many years after service separation. The RO discussed the Veteran’s advanced in service hobby of training carrier pigeons, and then also noted the Veteran’s acknowledged post service hazardous exposure during home remodeling. As the private opinion found that the histoplasmosis was likely due to either in service homing pigeon exposure or post service home remodeling exposure, the RO considered the available evidence and found that it weighed against a finding that the histoplasmosis was due to the in service homing pigeon exposure. The evidence at the time of the May 11, 2009 rating decision reflected that the diagnosed histoplasmosis was likely due to either the Veteran’s in service hobby of working with homing pigeons or from post service hazardous exposure while home remodeling during the period from 1991 to 1993. After considering all the evidence of record, the RO effectively found that the evidence weighed against a finding that the histoplasmosis was due to the in service exposure. As such, the Board finds the Veteran’s argument that service connection for histoplasmosis should have been granted by the RO in May 2009, based upon the evidence then of record, is simply a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. Review of the record reflects no other significant CUE arguments raised by the Veteran or representative; therefore, because the argument presented by the Veteran amounts to nothing more than a 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 May 11, 2009 rating decision denying service connection for histoplasmosis. Id. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel