Citation Nr: 18161067 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-12 492A DATE: December 28, 2018 ORDER June and October 1970 rating decisions, which assigned a noncompensable rating for a thyroglossal duct cyst excision scar were not clearly and unmistakably erroneous. A July 2001 rating decision which assigned an effective date of May 17, 2000 for service connection for dysphagia, was not clearly and unmistakably erroneous. Entitlement to a total disability rating due to individual unemployability is denied. FINDINGS OF FACT 1. The Veteran has not identified an error in fact or law in the June and October 1970 rating decisions which assigned a noncompensable rating for a thyroglossal duct cyst excision scar 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. 2. The Veteran first filed a claim alleging a swallowing disorder secondary to his thyroglossal duct cyst excision scar on May 17, 2000. 3. The Veteran has not identified an error in fact or law in the July 2001 rating decision that assigned an effective date of May 17, 2000, for an award of service connection for dysphagia, 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. 4. The Veteran is service connected for dysphagia secondary to thyroglossal duct surgery, evaluated as 50 percent disabling; sleep apnea, evaluated as 50 percent disabling; a bilateral hearing loss, evaluated as 20 percent disabling; tinnitus evaluated as 10 percent disabling; residuals of a fractured nasal septum, status post rhinoplasty, evaluated as 10 percent disabling; a thyroglossal duct cyst excision scar, evaluated as 10 percent disabling; a painful neck scar, evaluated as 10 percent disabling; and for left ear otitis media and externa, evaluated as noncompensable. The Veteran’s combined evaluation for compensation has been 90 percent since October 2014. 5. The Veteran’s service-connected disabilities alone are not shown to render him unemployable. CONCLUSIONS OF LAW 1. The June and October 1970 rating decisions denying entitlement to a compensable rating for a thyroglossal duct cyst excision scar were not clearly and unmistakably erroneous. 38 U.S.C. §§ 310, 4005 (1970); 38 C.F.R. §§ 3.1 (q), 3.103, 3.105, 19.112, 19.113, 19.118, 19.120, 19.153 (1970). 2. The June 2001 rating decision assigning an effective date of May 17, 2000, for an award of service connection for dysphagia was not clearly and unmistakably erroneous. 38 U.S.C. §§ 1110, 7105 (2001); 38 C.F.R. §§ 3.1 (q), 3.103, 3.105, 3.400, 19.112, 19.113, 19.118, 19.120, 19.153 (2001). 3. The criteria for assignment of a total disability rating based upon individual unemployability are not met, and there is no evidence to warrant referral for consideration of individual unemployability on an extra-schedular basis. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (The Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. As for claims based on an allegation of clear and unmistakable error, those are based on the evidence of record at the time of the challenged decision; there is no evidentiary development for such claims. Livesay v. Principi, 15 Vet.App. 165, 178 (2001) (“These rules [implementing the VCAA] make clear that several of the claimant-friendly provision of title 38 generally applicable to the adjudication of VA benefits claims do not apply to [motions pertaining to allegations of clear and unmistakable error.]”; “there is nothing in the text of the legislative history of VCAA to indicate that VA’s duties to assist and notify are now, for the first time, applicable to [motions pertaining to allegations of clear and unmistakable error.]”); see also Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay for the proposition: “the VCAA is not applicable to [motions pertaining to allegations of clear and unmistakable error.]”). Accordingly, no further action is necessary to comply with the duty to assist. Clear and Unmistakable Error 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 United States Court of Appeals for Veterans Claims (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. June and October 1970 rating decisions In a June 1970 rating decision, the Veteran was granted entitlement to service connection for a thyroglossal duct cyst excision scar, and a noncompensable rating was assigned effective April 14, 1970. An October 1970 rating decision confirmed that assignment. The appellant appealed, however, he did not perfect a timely appeal. Hence, the June and October 1970 rating decisions are final. 38 U.S.C. § 4005. At the time of the June and October 1970 rating decisions the evidence showed that the claimant underwent surgery to excise a thyroglossal duct cyst in April 1969. In May 1970 the appellant was provided a VA examination which revealed a thyroglossal duct cyst excision scar. No abnormality was found during the general physical examination. A May 1970 ear, nose and throat examination noted good results following surgery for a thyroglossal duct cyst excision. Physical examination revealed hyperemic mucosa at the posterior wall of the pharynx. The pertinent diagnosis was a thyroglossal duct cyst excision scar. In an May 2015 motion, the appellant asserted that there was clear and unmistakable error in the June 1970 rating decision, and argued that a 10 percent rating should have been assigned from April 14, 1970. Under 38 C.F.R. § 4.118 (1970) a noncompensable rating was assigned where there was a “slight neck scar.” A 10 percent rating was assigned where the scar was moderately disfiguring. The Veteran cited to Merriam-Webster’s online thesaurus to show that synonyms for slight included “faint, insignificant, or negligible.” The Veteran also argues that findings from a September 1970 examination showing moderate disfigurement due to the scar require a finding of clear and unmistakable error. The Board finds that supporting a claim that the June 1970 rating decision was clearly and unmistakably erroneous using findings from a September 1970 examination is not appropriate. The question whether a rating decision was clearly and unmistakably erroneous may, in pertinent part, only consider the evidence available at the time of the rating. Given that any findings from the September 1970 examination were not available to the June 1970 rating board it follows that those later findings cannot be used to find error in an earlier June 1970 rating decision. Accordingly, looking strictly at the evidence available to the June 1970 rating board, the Board finds that there was no evidence at that time supporting a claim that the scar in question was moderately disfiguring. As such, the June 1970 rating decision was not clearly and unmistakably erroneous. The Board acknowledges that an undated rating decision (but apparently entered in October 1970 based on review of the October 1970 statement of the case), noted that a September 1970 VA examination found that the scar was healed, pinkish, and mildly disfiguring. The October 1970 statement of the case noted that a photograph of the scar from that examination was of record. As noted above, a clear and unmistakable error 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. While a lay person perhaps cannot judge whether a scar is deep, or adherent, a lay person can pass judgment on the severity of a scar’s appearance. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, while it is true that the VA examiner found the scar to be moderately disfiguring, other viewers could reasonably find that the scar was slight, particularly given its healed and pinkish appearance. Moreover, looking at photograph taken at the September 1970 examination leads the Board to find that reasonable minds could differ as to the severity of the scar. While the undersigned may agree with the examiner’s finding, that is not the test. The test is whether reasonable minds could not differ. Based on the evidence available in October 1970, the Board finds that reasonable minds could differ. As such, the October 1970 rating decision was a reasonable exercise of rating judgment and not clearly and unmistakably erroneous. The claim is denied. July 2001 rating decision In a July 2001 rating decision VA granted entitlement to service connection for dysphagia effective May 17, 2000, the date the Veteran filed his claim. The Veteran did not appeal the assigned effective date, but only the assigned rating. When dysphagia was increased to 30 percent disabling in a November 2001 rating decision, the Veteran submitted a statement noting that the action satisfied his appeal on all issues. Hence, the July 2001 rating decision is final. 38 U.S.C. § 7105. In May 2015 the appellant asserted clear and unmistakable error in relation to the assigned effective date of his service connection for dysphagia. The Veteran has argued that his September 1970 examination was inadequate because it failed to properly address his initial complaints of difficulty swallowing. In an August 1970 medical report it was noted that the Veteran had “trouble swallowing at times” and an ear nose and throat examination from September 1970 indicated that the Veteran “complains of pain, difficulty in swallowing and tightening of neck muscles since surgery for thyroglossal duct cyst in April 1969.” The evidence also shows that during the September 1970 examination the examiner found that the Veteran “swallowed water for me all right.” The Court has held that the failure to fulfill the duty to assist does not constitute clear and unmistakable error. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The essence of a claim of clear and unmistakable error is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Hence, even if the original examination was inadequate that inadequacy would not constitute a clear and unmistakable error. Id. The evidence at the time was considered by the examiner and in the Rating Decision. They determined that the Veteran did not have a swallowing disability that warranted service connection. With regard to clear and unmistakable error motions, the benefit of the doubt doctrine is inapplicable. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell v. Principi, 3 Vet. App. 310 (1992)) (The benefit of the doubt doctrine is not applicable in assessing a clear and unmistakable error motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). The July 2001 rating decision was reasonably supported by the evidence of record at that time, and it was consistent with the laws and regulations then in effect. As such, the Board finds that the Veteran has failed to establish a factual or legal error rising to the level of clear and unmistakable error in the July 2001 decision that assigned entitlement of service connection for dysphagia effective May 17, 2000. Hence, the criteria have not been met for reversing that prior decision on the basis of clear and unmistakable error. The law regarding effective dates for service connection claims provides that, unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. It is worth noting that the service treatment records cannot be held to constitute a claim for dysphagia. The Court held in Criswell v. Nicholson, 20 Vet. App. 501 (2006) that, while the law requires VA to give a sympathetic reading to a veteran’s filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, it is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. Citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon v. West, 12 Vet. App. 32, 35 (1998). Pertinent to the question in this case, the Criswell Court explained that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Citing Brannon, 12 Vet. App. at 35; 38 C.F.R. § 3.155 (a). To summarize, the Board finds that a claim of entitlement to service connection for dysphagia was not reasonably raised in 1970, or at any time prior to the May 2000 claim. In so finding, the Board notes that there is no provision in the VA Adjudication Procedure Manual extant at the time of the 2001 claim that can serve - in direct conflict with longstanding statute, judicial precedent, and VA regulations - to reasonably raise a claim for a different disorder than that claimed in writing. As such, the principal theory of entitlement expressed by the Veteran is without merit. The Board acknowledges the Veteran’s essential argument that he complained of trouble swallowing shortly after his operation. VA law, however, clearly requires a claim, and that such claim identify the benefit being sought. Here, the first correspondence that meets the definition of a claim for service connection for dysphagia was received in May 2000. Moreover, there appears no dispute that the date entitlement arose is prior to the date of claim. Therefore, the date of claim, May 2000, is the later of the two dates, and is the appropriate effective date. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). As such, the July 2001 rating decision was not clearly and unmistakably erroneous. The claim is denied. Individual Unemployability The Veteran applied for entitlement to total disability due to individual unemployability in March 2015. The Veteran has applied for entitlement to total disability due to individual unemployability several times previously and was most recently denied by the Board in March 2012. This decision was not appealed and is final. 38 U.S.C. § 7104. Since his last claim the Veteran has additionally been service connected for sleep apnea, rated as 50 percent disabling. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.1.6(a). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render' it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. § 3.341, 4.16, 4.19. The Court has held that in determining whether the veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. The Veteran is service connected for dysphagia secondary to thyroglossal duct surgery, evaluated as 50 percent disabling; sleep apnea, evaluated as 50 percent disabling; a bilateral hearing loss, evaluated as 20 percent disabling; tinnitus evaluated as 10 percent disabling; residuals of a fractured nasal septum, status post rhinoplasty, evaluated as 10 percent disabling; a thyroglossal duct cyst excision scar, evaluated as 10 percent disabling; a painful neck scar, evaluated as 10 percent disabling; and for left ear otitis media and externa, evaluated as noncompensable. The Veteran’s combined evaluation for compensation has been 90 percent since October 2014. As the Veteran has one disability rated at 50 percent and the combined rating is 70 percent, or higher, the percentage criteria under 38 C.F.R. § 4.16(a) are met. Even though the Veteran meets the aforementioned percentage requirements, the evidence must show that his service-connected disabilities alone preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Upon review of the claims file, the Board finds that the evidentiary record preponderates against such a conclusion. The Veteran was provided VA examination related to his sleep apnea in January 2015. The examiner noted that the Veteran’s sleep apnea did not impact his ability to work. The examiner suggested the use of a continuous positive airway pressure machine and noted mild tiredness during the day as a result of the sleep apnea. An additional VA hearing examination was provided in May 2016. This examiner found that the Veteran’s degree of hearing loss would cause some difficulty hearing clearly in the presence of background noise and from a distance. Still, the Veteran would be able to communicate effectively in one-on-one situations in quiet environments but will struggle to hear over the telephone. The examiner concluded that the Veteran’s hearing loss should have no impact on his ability to work independently. The examiner noted that the Veteran’s tinnitus would have no impact on his ability to work. The Veteran was provided an examination of his esophageal condition in May 2016. The examiner found no impact on the Veteran’s ability to work due to his esophageal conditions. Following these examinations, the examiner provided an opinion addressing whether the combined effects of the Veteran’s service connected disabilities would limit his function in an occupational environment. The examiner noted that the Veteran was well dressed, well groomed, and conversed well with normal conversation and appeared to understand all the interview questions. The examiner listed the Veteran’s service connected disabilities and concluded that they would not limit functional activities. The examiner’s rationale was that the Veteran reported living on three acres of land, and was able to use a riding lawn mower to mow the yard, and that he continued to enjoy hunting and fishing. The examiner also noted that the Veteran used deer stands while hunting. The examiner observed that the Veteran was quite physically fit, well-tanned, and that many other individuals have the same type of service connected disabilities but were functional in work activities. As noted in the 2012 Board decision, the Veteran has previously worked as a carpenter and stopped due to non-service connected disabilities. The Veteran’s usual occupation was carpenter and he stated that he retired in 1998 after undergoing the fusion of his right wrist secondary to advanced osteoarthritis. The appellant is not service connected for osteoarthritis. Based on the foregoing, the Board concludes that although the Veteran has some degree of industrial impairment as a result of his service-connected disabilities, the evidence preponderates against finding that these disorders alone preclude gainful employment. The Board notes that “the percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1. Based on a review of the evidence of record, the Board is of the opinion that the disability evaluations assigned to the Veteran's disorders under the VA Schedule for Rating Disabilities accurately reflect the overall impairment to his earning capacity due to his service-connected disabilities. Therefore, a total rating for compensation based on individual unemployability due to a service-connected disability is not warranted. The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel