Citation Nr: 18152904 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-50 030 DATE: November 27, 2018 DISMISSED The claim of whether clear and unmistakable evidence (CUE) was committed in prior final rating decision that failed to award service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for a stomach disability is remanded. FINDING OF FACT The Veteran has not adequately set forth allegations of CUE in a prior rating decision denying entitlement to service connection for a bilateral hearing loss disability, the legal or factual basis for such allegations of error, or why the result would have been manifestly different but for the errors. CONCLUSION OF LAW Because the pleading requirements for a motion for revision of a decision based on clear and unmistakable error have not been met, the motion must be dismissed without prejudice to refiling. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. § 3.105 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1972 to January 1975. Whether CUE was committed in a prior final rating decision that failed to award service connection for bilateral hearing loss Generally, once a decision becomes final, it may only be revised by a showing of CUE. See 38 C.F.R. §§ 3.104, 3.105. CUE is recognized to be a very specific and rare kind of error of fact or law that compels the undebatable conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). As such, to establish CUE, a claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (expressly holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Damrel v. Brown, 6 Vet. App. 242, 245 (1994), the Court explained that in order for clear and unmistakable error to exist: (1) “[e]ither the correct facts, as they were known at that 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 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See also Russell v. Principi, 3 Vet. App. 310, 313 (1992). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. See Fugo, 6 Vet. App. at 43; see also Phillips v. Brown, 10 Vet. App. 25 (1997). The Board acknowledges that the Veteran (and his representative) argued that CUE was present in his June 2015 claim, July 2015 Notice of Disagreement (NOD), October 2016 Substantive Appeal, and an August 2018 letter. Although the Veteran is claiming generally that CUE exists in the RO’s prior final decisions to deny entitlement to service connection for a bilateral hearing loss disability, the Veteran fails to describe a specific error made by the AOJ. First, none of the statements indicate which of the decisions (May 21, 2009, April 27, 2011, October 31, 2014) CUE is being alleged. Where there are multiple decisions, a failure to specify the dates of the decision being collaterally attacked renders the pleading of CUE insufficient. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). It is also unclear what specific error of fact or law is being disputed by the Veteran and his representative. In the Veteran’s June 2015 claim, the representative argues that the VA examiner failed to provide a complete exam and that the VA examiner must discuss the effects of the Veteran’s hearing on the claimant’s occupational functioning and daily activities. In the July 2015 NOD, the representative argues that the Veteran’s lay statements were not properly considered and that a complete exam was not provided. In the October 2016 Substantive Appeal, it was argued that an extraschedular rating should be considered and that a claimant may establish direct service connection for a hearing disability that manifests several years after service. Finally, in the August 2018 letter, the representative argues that the Veteran’s reports of noise exposure were not considered, that an extraschedular rating should be considered, and that new evidence of a Marine Corps Hearing Conservation Program should be considered. As the Veteran’s claim has been denied for lack of evidence of a current hearing disability, it is unclear how any of these arguments provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. In order for service connection to be granted, the first criteria for service connection is a current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Board cannot identify an argument of error of fact or law that if reversed would change the outcome of the decision (or decisions) at issue, the Board finds the pleading of CUE to be insufficient. While the Board has an obligation to read pro se filings liberally, this obligation, however, does not extend to filings by counsel. See Andrews v. Nicholson, 421 F.3d 1278, 1283-84 (Fed. Cir. 2005). Here, the Veteran is represented by a claims agent and the Board does not find that it is obligated to read the CUE motion filed on behalf of the Veteran liberally. From a reading of the statements provided on behalf of the Veteran, the Board finds that he simply has expressed disagreement with the RO’s denial of the claim and subsequent denials to reopen based upon failure to provide new and material evidence. At a minimum, the Veteran must clearly identify the specific decision which he believes contains error, and the specific issue within that decision. Absent such contentions, the Board finds that no further consideration is warranted with regard to any general assertions of CUE. The CUE motion is dismissed without prejudice to refiling. REASONS FOR REMAND Entitlement to service connection for a stomach disability is remanded. With regard to the Veteran’s claim for a stomach disability, the Board finds that a new VA examination should be afforded. Medical records from the Centers for Gastroenterology in December 2011 and January 2012 note that the Veteran had a prior diagnosis of H. pylori but was placed on Prevpac for 2 weeks and underwent a negative Py test on 12/1/2011. The February 2017 VA examination stated that Veteran “now has or has ever had” a diagnosis of a stomach condition based upon a diagnosis in December 2011. As the Veteran filed for service connection in January 2017, it is unclear whether the Veteran has had a current diagnosis of a stomach disability, including H. pylori, during the appeal period. The Board finds that a new examination should be provided to determine if a stomach disability has been present during the appeal period. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate examiner to determine whether the Veteran has had a stomach disability during the appeal period and, if so, to provide an opinion on the etiology of this disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is asked to address the following: a. Whether the Veteran has had a diagnosis of Helicobacter pylori, or any stomach disability, since the claim was filed on January 20, 2017? b. If a disability is found during the appeal period, please opine as to whether it is at least as likely as not (a 50 percent probability) that the Veteran’s current stomach disability, to include H. pylori, is due to, or the result of, any incident of his period of active service. The examiner is asked to discuss the Veteran’s report of vomiting blood in May 1973 and the articles provided by the Veteran in January 2017, April 2017, January 2018, and August 2018. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran’s claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, he should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel