Citation Nr: 20021262 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-14 044 DATE: March 25, 2020 ORDER Clear and unmistakable error was present in an August 2004 rating decision to the extent that a noncompensable rating was assigned for hypertension; the decision is revised to assign a 10 percent initial rating for hypertension. FINDINGS OF FACT 1. In an August 2004 rating decision, the Veteran was granted service connection for hypertension and assigned a noncompensable rating under Diagnostic Code 7101 effective December 1, 2003. 2. The August 2004 rating decision contained clear and unmistakable error (CUE) in not assigning a 10 percent rating for hypertension as the RO did not correctly apply the regulatory provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101; but for the legal error, the outcome would have been manifestly different so that an initial 10 percent rating for hypertension would have been granted. CONCLUSION OF LAW The August 2004 rating decision which assigned a noncompensable rating for hypertension was clearly and unmistakably erroneous and is revised to assign a 10 percent initial rating from December 1, 2013. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1983 to November 2003. CUE The Veteran has made allegations of CUE in the final August 2004 rating decision that assigned a noncompensable rating for hypertension under Diagnostic Code 7101 effective December 1, 2003. She asserts that she was diagnosed with hypertension during her active service and required medications for control as documented in her service treatment records (STRs.). Previous determinations that are final and binding will be accepted as correct in the absence of CUE; however, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding 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). The United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”) has provided a three-part test to determine if there was CUE in a prior decision: (1) either 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 that 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), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). 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. 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 (1993), citing Russell, 3 Vet. App. at 313-14. A claim that the evidence was not properly weighed or evaluated cannot constitute CUE, and the allegation of CUE must specifically state what error occurred and how the outcome would have been manifestly different. Where a claimant fails to reasonably raise a CUE claim as set forth above, there is no requirement to address the merits of the issue. Fugo, 6 Vet. App. at 45. In other words, if the error alleged is not the type of error that, if true, would be CUE on its face; or if the claimant is only asserting disagreement with how the RO evaluated the facts before it; or if the claimant has only alleged a failure on the part of VA to fulfill its duty to assist; or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a manifestly different result, then the claim should be denied or the appeal to the Board dismissed. Simmons v. Principi, 17 Vet. App. 104 (2003). In the August 2004 rating decision, the RO granted service connection for hypertension and assigned a noncompensable rating under Diagnostic Code 7101. In assigning this rating, the RO relied on the Veteran’s STRs that showed that she had been diagnosed with hypertension during her active service. The Veteran did not appeal the August 2004 rating decision and it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran now asserts that this rating decision is clearly erroneous in failing to consider her STRs that were available for review showing that she was prescribed medications for control of her hypertension. The Veteran’s hypertension was evaluated under Diagnostic Code 7101. A 10 percent rating is assigned for diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominately 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominately 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2004). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id. The Veteran’s STRs show that the Veteran was diagnosed with hypertension during her active service. She had blood pressure readings of 159/106, 151/98, 154/99, 138/91, 156/92, 146/100, 148/98, 146/96, 559/94, 158/92, 122/96, 140/100, 140/90, 160/98, 130/94, 150/94, 150/90, 152/102, 140/100, and 168/102 between February 1999 and March 2003. She was prescribed medications to control her hypertension during her active service. At her August 2003 separation physician, the medical officer specifically reported that the Veteran had a diagnosis of hypertension and was prescribed medications. In failing to consider that the Veteran was prescribed medications for control of her hypertension, the Board finds that there is CUE in the August 2004 rating decision. Accordingly, the Veteran was diagnosed with hypertension during her active service and required continuous medications for control. As such, a 10 percent rating should clearly have been assigned for the Veteran’s hypertension. Hence, the August 2004 decision failed to correctly apply the statutory and regulatory provisions at that time when it did not assign a 10 percent for the Veteran’s hypertension. The Board finds that the August 2004 rating decision error was “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made, that is, would have resulted in a 10 percent initial rating under the regulations in effect at that time. As such, the appeal regarding hypertension is allowed. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.