Citation Nr: 18144063 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 15-32 906 DATE: October 23, 2018 ORDER The June 24, 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision assigning an initial 10 percent disability rating for service connected cervical spine intervertebral disc syndrome with arthropathy and foraminal stenosis (cervical spine disorder) was not clearly and unmistakably erroneous (CUE). The June 24, 2015 RO rating decision assigning an initial 10 percent disability rating for service connected gastroesophageal reflux disease (GERD) was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the June 24, 2015 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it assigned an initial 10 percent disability rating for the service connected cervical spine disorder. 2. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the June 24, 2015 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it assigned an initial 10 percent disability rating for the service connected GERD. CONCLUSIONS OF LAW 1. The June 24, 2015 rating decision assigning an initial 10 percent disability rating for the service connected cervical spine disorder was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 2. The June 24, 2015 rating decision assigning an initial 10 percent disability rating for the service connected GERD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from November 1990 to December 1999. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of the RO in St. Paul, Minnesota. 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 issues on appeal. CUE Law and Regulation 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 June 24, 2015, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision as to the issues on appeal 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). The Board also finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements as to the question of whether there was CUE in the initial disability ratings assigned. 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). As discussed above, CUE claims must be pled with some specificity. In the October 2017 NOD to the RO’s CUE denials, the Veteran advanced disagreeing with both the ratings of the disabilities and the effective dates of the awards; however, in a March 2017 brief received by VA, the Veteran and representative only made CUE arguments concerning the initial ratings assigned. To date, no arguments have been provided as to why the effective dates assigned are incorrect. As such, in the instant decision the Board will only be addressing the properly pled initial disability rating issues on appeal. 1. CUE in June 24, 2015 Cervical Spine Disorder Rating In the March 2017 CUE brief, the Veteran’s representative argues that the Veteran should have been assigned an initial 20 percent disability rating for the service connected cervical spine disorder because the evidence showed that the Veteran experienced incapacitating episodes of at least two weeks, but less than four weeks, in duration in the past 12 months. At the time of the June 24, 2015 rating decision, then, as now, disabilities of the spine were rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). 38 C.F.R. § 4.71a (2015). The IVDS Rating Formula provided for a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than 4 weeks, during the past 12 months. Id. Further, 38 C.F.R. § 4.14 (2015) directed that pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, was to be avoided when rating a veteran’s service-connected disabilities. Per the report of a June 2015 VA neck examination, the Veteran had symptoms of pain in both the neck and right arm. Further, during a flare up of pain, both the neck and arm pain would worsen. Examination showed that the Veteran had right upper extremity radiculopathy related to the diagnosed cervical spine disorder. The VA examiner also found that the Veteran had IVDS with incapacitating episodes having a total duration of at least two weeks, but less than 4 weeks, during the past 12 months. After considering the relevant evidence, in the June 2015 rating decision, the RO granted service connection for both a cervical spine disorder and right upper extremity radiculopathy. In the rating decision, the RO specifically discussed the fact that the Veteran had IVDS with incapacitating episodes having a total duration of at least two weeks, but less than 4 weeks, during the past 12 months; however, the RO found that it would be less advantageous to rate under the IVDS Rating Formula, as the RO would not have been able to grant a separate compensable rating for the right upper extremity radiculopathy under the IVDS Rating Formula. In other words, the RO specifically found that the Veteran’s incapacitating episodes were due to both the neck pain and the right upper extremity pain. As such, it would have constituted improper pyramiding under 38 C.F.R. § 4.14 if the RO granted a separate compensable rating for the right upper extremity (under the General Formula for rating spine disabilities, which directs that separate ratings are available for objective neurological manifestations) in addition to rating the cervical spine disorder on incapacitating episodes (under the IVDS Rating Formula). In order to maximize the benefits available to the Veteran, the RO instead granted a 10 percent disability rating for the cervical spine disorder based upon limitation of motion. The Veteran and representative’s argument that an initial 20 percent disability rating should have been assigned for the service connected cervical spine disability 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. For this reason, the Board finds was no CUE in the June 24, 2015 RO rating decision assigning an initial 10 percent disability rating for the service connected cervical spine disorder. 2. CUE in June 24, 2015 GERD Rating In the March 2017 CUE brief, the Veteran’s representative argues that the RO committed legal error under Jones v. Shinseki by considering the ameliorative effects of the Veteran’s GERD medication when it initially rated the service connected GERD. 26 Vet. App. 56, 63 (2012) (a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). The representative went on to argue that, when the Veteran is not being treated for GERD, symptoms include vocal cord polyps requiring surgery to remove and difficulty talking or chewing, which constitutes a considerable impairment of health. As such, had the purported legal error of considering ameliorative effects of medication not been made, an initial disability rating of 30 percent would have been granted for the service connected GERD. The representative did not argue that the evidence before the RO at the time of the June 24, 2015 rating decision indicated that the Veteran experienced regurgitation when not taking medication. The Veteran’s service connected GERD is rated by analogy under Diagnostic Code 7346 for symptoms of a hiatal hernia. At the time of the June 24, 2015 rating decision, then, as now, a 30 percent disability rating was warranted for symptoms that included persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114 (2015). A VA GERD examination was conducted in June 2015. Per the examination report, the Veteran reported that symptoms worsened when not taking medications; however, the Veteran did not say what symptoms would worsen and the VA examiner did not discuss what, if any, symptoms would worsen when the Veteran was not on medication. There is no indication from the examination report that if the Veteran stopped taking the GERD medication the previously treated vocal cord polyps would return. Upon examination it was found that the Veteran did not have symptoms of regurgitation, and there was no evidence that the Veteran would experience regurgitation if medication were discontinued. Per the June 2015 rating decision, the RO denied an initial disability rating of 30 percent for the service connected GERD, at least in part, on the absence of symptoms of regurgitation, which is necessary for a 30 percent disability rating under Diagnostic Code 7346. Id. As discussed above, in the March 2017 CUE brief, the representative did not argue that the evidence before the RO at the time of the June 24, 2015 rating decision showed that the Veteran would experience regurgitation if not taking GERD medications. As such, the representative’s CUE argument, though presented as a legal error, is only a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel at 245; Fugo at 43 44. For this reason, the Board finds was no CUE in the June 24, 2015 RO rating decision assigning an initial 10 percent disability rating for the service connected GERD. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel