Citation Nr: 18147971 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-10 040 DATE: November 6, 2018 ORDER The appeal on whether there was clear and unmistakable error (CUE) in the March 1981 rating decision that assigned a 20 percent rating for the Veteran's service-connected juvenile onset diabetes mellitus (type I), is denied. The appeal on whether there was clear and unmistakable error in the October 2008 rating decision that assigned an effective date of October 13, 2007 for the increased 40 percent rating for the Veteran's service-connected juvenile onset diabetes mellitus with diabetic non-proliferative retinopathy in both eyes, is denied. FINDINGS OF FACT 1. The Veteran’s original claim for juvenile onset diabetes mellitus type I was granted with a 20 percent rating by a March 1981 decision; no appeal was filed and no additional relevant evidence was submitted within one year. 2. The March 1981 rating decision that granted a 20 percent rating for the Veteran’s diabetes mellitus, but no higher, was made based on the facts known before the adjudicators at that time, the law then in effect was correctly applied, and the rating decision did not contain undebatable errors that were outcome determinative. 3. There was not clear and unmistakable error in the October 2008 rating decision that granted a 40 percent rating for the Veteran’s service-connected diabetes mellitus; an earlier effective date is not warranted. CONCLUSIONS OF LAW 1. The March 1981 rating decision which granted service-connection for juvenile onset diabetes mellitus type I and assigned a 20 percent rating was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2018). 2. The criteria for an effective date earlier than October 13, 2007, for the grant of an increased rating of 40 percent for the service-connected juvenile onset diabetes mellitus with diabetic non-proliferative retinopathy in both eyes have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1976 to August 1980. He testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2018. A transcript of the hearing is of record. 1. Whether there was clear and unmistakable error (CUE) in the March 1981 rating decision that assigned a 20 percent rating for the Veteran's service-connected juvenile onset diabetes mellitus (type I) At his Board hearing, the Veteran had the opportunity to lay out his contentions. There is no dispute that he was medically separated from the Navy as a result of his juvenile onset diabetes (type I), which at the time, required insulin injections and a restricted diet. He contends that his diabetes mellitus also required restricted activities. He contends the fact that he was put on light duty is clear and unmistakable evidence that he had to restrict his activities, and therefore, is entitled to a 40 percent rating from the date of discharge. Unappealed rating decisions are final, and a final rating decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error, as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a). If the evidence establishes clear and unmistakable error, the prior decision will be reversed or amended. A finding of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves clear and unmistakable error, the Court 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 clear and unmistakable error 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)). A clear and unmistakable error 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, 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 be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). A determination of clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). An assertion of clear and unmistakable error 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, placing a heavy burden on the claimant. Fugo, 6 Vet. App. at 43-44; see also Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran has not met this burden, for the following reasons. Initially, the Board notes that at no point did the Veteran attempt to initiate an appeal as to the March 1981 rating decision. Indeed, at his Board hearing, he stated “I didn’t even know I had one.” In addition, no additional evidence was submitted within one year of the rating decision. As such, there is no dispute that the March 1981 rating decision is final. As noted above, the question in this case is essentially whether the RO committed clear and unmistakable error when it denied a higher 40 percent rating based on the fact that the Veteran did not have regulation of activities during that time. Under the relevant Diagnostic Code 7913, which addresses diabetes mellitus, the regulation in place at the time of the March 1981 decision stated a 20 percent evaluation is warranted for moderate diabetes mellitus which is controlled by a moderate insulin or oral hypoglycemic agent dosage and a restricted (maintenance) diet where there is no impairment of health or vigor or limitation of activity. A 40 percent evaluation is appropriate for moderately severe diabetes mellitus requiring a large insulin dosage, a restricted diet, and careful regulation of activities (i.e. avoidance of strenuous occupational and recreational activities). Because this was the law in effect at the time of the rating decision, this law must be applied. To have warranted a 40 percent rating for his diabetes mellitus at the time of the March 1981 denial, there must have been evidence of an avoidance of strenuous occupational and recreational activities. The Board acknowledges the arguments put forth by the Veteran and his representative. In this regard, they state: The reason VA claims they did not commit a clear and unmistakable error is because they contend that the light duty status didn’t really mean his activities were permanently restricted. The Veteran disagrees with the way the VA is trying to manipulate the information found in the US Navy’s medical manual as it relates to light duty. Ironically, the VA actually proved the Veteran’s case when they cited language from this manual. In the denial letter issued by VA on 11/1/2014, VA cites the following paragraph from the Navy’s light duty regulations: “A provider placing a member on light duty does so only with the expectation that the member will be able to return to medically unrestricted duty status at the end of the light duty period… At the end of the light duty period, the member will either be immediately returned to medically unrestricted duty or WILL BE REFERRED TO AN MEB.” In the Veteran’s case, he was unable to return to medically unrestricted duty; he was referred to a Medical Review Board and discharged from the military. However, at the time of the March 1981 rating decision, these arguments were simply not put forward. In addition, even assuming that light duty could be said to equate to “restriction of activities,” the law at the time of the denial did not merely require a restriction of activities. Instead, the facts must have shown that the Veteran had to avoid both strenuous occupational and recreational activities. On review of the record, there is simply no showing that the Veteran had to avoid strenuous recreational activities. On VA examination in November 1980, there was no evidence showing that the Veteran was prescribed regulation of activities to control his diabetes; and there was no evidence showing frequent episodes of hypoglycemia or episodes of ketoacidosis. Furthermore, the evidence after the rating decision showed that the Veteran continued to be physically active despite his diabetes. The Board again stresses that the standard before it is not whether there is reasonable doubt; indeed, the Board agrees that the Veteran puts forth a very compelling argument that would invoke reasonable doubt. However, the standard before the Board is clear and unmistakable error; which 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, this would mean 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. The interpretation of “light duty” and determining whether that would equate to avoidance of both strenuous occupational and recreational activities was a determination made by the RO of which reasonable minds could differ. As such, the Board finds that the March 1981 was not clearly erroneous. 2. Whether there was clear and unmistakable error in the October 2008 rating decision that assigned an effective date of October 13, 2007, for the increased 40 percent rating for the Veteran's service-connected juvenile onset diabetes mellitus with diabetic non-proliferative retinopathy in both eyes. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). In addition to the Veteran’s contentions that he should have been awarded a 40 percent rating dating from service, he has also contended that the October 2008 rating decision for his service-connected diabetes mellitus, which increased his rating for his diabetes mellitus to 40 percent, is clearly erroneous and he should be awarded an earlier effective date. He has stated: In 2007, I initiated a claim for an increase in my diabetes rating. I went before a VA examiner and on July 2, 2008 the following symptoms [were] noted “Is Veteran restricted in his ability to perform strenuous activities, yes.” Description of regulated or restricted activities for the Veteran, fatigued and hypoglycemic with heavy physical activities such as sports or heavy manual labor.” In October of 2008 I was granted a 40 percent disability rating effective October 13th, 2007 from this report and symptomology reported. I think it is imperative to note that the regulation of activities order has been in place since I left the Navy in 1980. Every treating physician I have ever had in the military or in civilian life has prescribed this type of restriction on me to avoid exacerbating my diabetic condition. Essentially, the Veteran has raised the issue of CUE in the October 2008 rating decision to attempt to obtain a 40 percent rating for his diabetes mellitus from the date of discharge. For the reasons discussed above, the Board has already found there not to be CUE in the earlier decision. However, the Board will still address whether an earlier effective date is warranted based on this decision. That is, the Board must determine the earliest possible date as of which it is ascertainable that an increase in disability had occurred, if application was received within one year of such date. A review of the record shows that there was not any communication associated with the claims file between the period of May 2001 and October 2007. The VA treatment records that were associated with the claims file in October 2007 show that the Veteran had to change his diet and possibly increase his dosage for his diabetes. They also advised the Veteran to “continue physical activity” in August 2007. In addition, on VA examination in February 2008, the Veteran did not report any specific physical restrictions on his activities as a result of his diabetes. It was not until June 2008, when the Veteran was afforded another VA examination, that the evidence showed that he was restricted in his ability to perform strenuous activities; and he would get fatigued and hypoglycemic with heavy physical activities such as sports or heavy manual labor. As such, the Board finds that the date of claim is the earliest possible effective date for the Veteran’s increased rating for 40 percent for his diabetes mellitus; the RO’s October 2008 rating decision was not clearly erroneous. The Board again acknowledges the arguments puts forth by the Veteran and does not dispute that he may have had physical limitations as a result of his diabetes mellitus. However, the law is clear that the Board must consider the facts as they were known before the adjudicators at that time of the rating decision. The Veteran had the opportunity to submit additional evidence showing physical activity limitation at the time he filed his claim but did not do so. Additionally, the claim for an increased was received by the RO in October 2007, and there is no evidence that he filed for an increase for his diabetes prior to that time. Therefore, because this information was simply not before the adjudicators at the time of their decision and there was evidence to the contrary, it cannot be said that the decision was clearly erroneous. Again, the RO made a determination of which reasonable minds could differ. (Continued on the next page)   There was no clear and unmistakable evidence and the October 2008 rating decision provided the appropriate effective date of October 13, 2007. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel