Citation Nr: 20021528 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-27 491 DATE: March 26, 2020 ORDER Entitlement to revision of an April 8, 2009, rating decision that assigned a 40 percent rating for degenerative disease of the lumbosacral spine, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. Entitlement to service connection for a left elbow disability is denied. REMANDED Entitlement to a rating in excess of 40 percent for degenerative disease of the lumbosacral spine is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity and muscle atrophy, associated with degenerative disease of the lumbosacral spine, is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity with femoral nerve involvement, associated with degenerative disease of the lumbosacral spine, is remanded. Entitlement to a rating in excess of 10 percent for left knee strain is remanded. Entitlement to an effective date earlier than June 10, 2013, for the grant of a total disability rating based on individual unemployability (TDIU), to include on the basis of clear and unmistakable error (CUE) in an April 8, 2009 rating decision, is remanded. FINDINGS OF FACT 1. The April 8, 2009, rating decision that assigned a 40 percent rating for degenerative disease of the lumbosacral spine became final because the Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. 2. The RO considered the facts shown in the evidence of record and applied the correct law at the time of the April 8, 2009, rating decision, and there is no error that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. 3. The Veteran has not alleged an error of fact or law in the April 8, 2009, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. 4. The Veteran’s left elbow disability is not etiologically related to service. CONCLUSIONS OF LAW 1. The April 8, 2009, rating decision that assigned a 40 percent rating for degenerative disease of the lumbosacral spine was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2019). 2. The criteria for entitlement to service connection for a left elbow disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 2006 to December 2008. These matters come to the Board of Veterans’ Appeals (Board) on appeal from April 2014, July 2015, and January 2016 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran was scheduled for March 2019 hearing before the Board but withdrew his request in March 2019 correspondence. 38 C.F.R. § 20.704. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in July 2013 and February 2014. The duty to assist do not encompass a person seeking revision of a final decision based on CUE. Livesay v. Principi, 15 Vet. App, 165 (2001). Therefore, no further discussion of the duties is warranted with respect to that aspect of this decision. Regarding the Veteran’s radiculopathy of the right lower extremity with femoral nerve involvement, this appeal arises from the Veteran’s disagreement with the initial evaluation assigned following the grant of service connection. Where an underlying claim for service connection has been granted and there is disagreement as to “downstream” questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). No additional discussion of the duty to notify is therefore required. The RO associated the Veteran’s service and VA outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Clear and Unmistakable Error The Veteran asserts CUE in the April 8, 2009 rating decision that granted service connection for degenerative disease of the lumbosacral spine and assigned a 40 percent disability rating, effective December 10, 2008. The Veteran’s representative contends that the RO failed to properly apply the schedular criteria for a 50 percent rating for the Veteran’s lumbosacral spine disability. The representative contends that the Veteran should have been assigned a 50 percent rating based upon his limitation of forward flexion of the lumbar spine to 25 degrees as observed by the January 2009 VA examiner. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). In September 2008, the Veteran submitted a claim for service connection for back arthritis, among other disabilities. In an April 2009 rating decision, the RO granted service connection for degenerative disease of the lumbosacral spine and assigned a 40 percent rating, effective December 10, 2008 under Diagnostic Code 5010-5242. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new and material evidence within one year of its promulgation. Thus, the April 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The current criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242, remains the same since the time of the April 2009 rating decision. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. In relevant part, Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire the thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the Formula for Rating IVDS Based on Incapacitating Episodes (in pertinent part) a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 for purposes of evaluations under the Formula for Rating IVDS Based on Incapacitating Episodes, defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. As noted above, the Veteran was afforded a VA examination in January 2009. Upon physical examination of the lumbar spine, the Veteran displayed 25 degrees of flexion, 10 degrees of extension, 20 degrees of lateral flexion bilaterally, 20 degrees of left lateral rotation, and 15 degrees of right lateral rotation. The VA examiner indicated that there was objective evidence of pain on active range motion. An x-ray performed during the examination showed lumbar disc narrowing at L4-L5-S1. Upon review of the evidence of record at the time of the April 2009, to include the January 2009 VA examination cited by the Veteran’s representative, the Board finds that the RO appropriately applied the General Rating Formula for disabilities of the spine. 38 C.F.R. § 4.71a. 25 degrees of flexion warrants a 40 percent disability rating under Diagnostic Code 5242. Evidence at the time of the April 2009 rating decision collectively did not indicate that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine to warrant a 50 percent disability rating. At the June 2016 DRO Informal Conference, the Veteran’s representative realized and acknowledged that unfavorable ankylosis of the entire thoracolumbar spine would need to be shown in order to warrant a 50 percent disability rating. To the extent that a June 2014 VA examiner noted that the Veteran was unable to complete range of motion testing due to ankylosis, a determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the April 2009 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). Notwithstanding, an addendum opinion was obtained by the VA examiner in March 2015. The VA examiner reported that there is no objective evidence of ankylosis of the spine. In summary, there is nothing in the record to support that the RO did not apply the appropriate law or did not have the correct facts before it at the time of its April 2009 rating decision and, therefore, the Veteran’s motion for revision of that decision must be denied. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran has made a bare assertion of a nexus between active service and his claimed left elbow disability. As a preliminary matter, the Board notes that the evidence of record reflects that the claimed left elbow disability did not manifest until well after separation from service. A February 2008 Medical Board examination yielded a normal clinical evaluation of the upper extremities. In his report of medical history for his February 2008 examination, the Veteran denied symptoms of painful elbows, swollen or painful joints, or any other symptoms associated with his claimed left elbow disability. Post service records show assessments of and treatment for left elbow pain beginning in March 2013, following an acute injury when lofting heavy objects in his garage.. No medical professional has opined that a left elbow disability is related to service on any basis. The Veteran has asserted his belief in a connection, but has offered no evidence in support of this belief, or even a defined theory of entitlement. He is a lay person, and not competent to offer a probative opinion on nexus in these matters. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While references to numbness and tingling in the arm in connection with the elbow are made, the Veteran is not diagnosed with radiculopathy of the upper extremities, nor is there a service-connected neck condition to account for such in any case. In short, the sole evidence relating the claimed left elbow disability to service is the bare, noncompetent allegation of nexus by the Veteran himself. He has not even offered any clear theory of entitlement to allow focused, meaningful development of the claims. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The appellant still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between service, and a left elbow disability, entitlement to the benefit sought is not warranted. REASONS FOR REMAND The Veteran’s representative contends that the VA examinations afforded to the Veteran during the period on appeal did not address the Veteran’s limited motion during flare-ups. Further, reports from the Veteran indicate his symptoms have worsened. The Veteran reported that he experiences two or more flare-ups per week lasting several hours to more than a day, “electrical shock” pain from the hip down, “burning” and “stabbing” pain in his foot, unable to get out of bed on some days, is unable to sit or stand for extended periods, and difficulties in his ability to drive. In light of the time that has passed since his last VA examination and reports of the Veteran’s worsening state, the Board finds that new VA examinations are needed to assess the current severity of the Veteran’s degenerative disease of the lumbosacral spine, radiculopathy of the right lower extremity, and left knee strain in order for the Board to make a fully informed decision. Updated private and VA treatment records should be requested on remand. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In support of his contention of an effective date earlier than June 10, 2013 for the grant of a TDIU, the Veteran asserts CUE in the April 2009 rating decision. The Veteran asserts that the April 2009 rating decision did not consider entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). At the June 2016 DRO hearing, the Veteran’s representative also contends that there was an informal and or unadjudicated claim for individual unemployability based upon the findings of the January 2009 VA examiner. Judicial review by the Board is frustrated as the January 2016 rating decision and July 2016 Statement of the Case did not address the Veteran’s CUE assertions. The analysis contained therein focused only on VA regulations governing schedular rating criteria or the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). As a result, the question of whether the April 2009 rating decision contained CUE must be remanded for adjudication by the Agency of Original Jurisdiction (AOJ) in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). The Board’s adjudication of the issue on appeal of entitlement to an effective date earlier than June 10, 2013 for the grant of TDIU is deferred pending resolution of the CUE argument raised by the Veteran’s representative. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA Form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who have treated him for his degenerative disease of the lumbosacral spine, radiculopathy of the right lower extremity, and left knee strain. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Associate with the claims file updated VA treatment records. 3. Schedule the Veteran for a VA spine examination to ascertain the current nature and severity of his service-connected degenerative disease of the lumbosacral spine. 4. Schedule the Veteran for a VA peripheral nerves examination to ascertain the current nature and severity of his service-connected radiculopathy of the right lower extremity. 5. Schedule the Veteran for a VA knee examination to ascertain the current nature and severity of his service-connected left knee strain. 6. Thereafter, readjudicate the increased rating claims on appeal and adjudicate the claim of entitlement to an effective date earlier than June 10, 2013, for the grant of TDIU, to include on an extraschedular basis in consideration of the Veteran’s allegation of CUE. If the benefits sought remains denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate 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.