Citation Nr: A20008679 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 191204-47461 DATE: May 15, 2020 ORDER Entitlement to revision of the February 1983 rating decision on the basis of clear and unmistakable error (CUE) to reflect an initial compensable rating for hypertension is denied. FINDING OF FACT 1. The February 1983 rating decision that became final because the Veteran did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in February 1983 and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The criteria for entitlement to revision of the February 1983 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1962 to March 1982. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). That law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA became effective on February 19, 2019. In a June 2019 rating decision, the RO found no CUE in the February 1983 rating decision that assigned an initial noncompensable rating for the Veteran’s service-connected hypertension. In December 2019, the Veteran submitted a Notice of Disagreement with regard to rating decisions issued in April 1982, February 2011, and June 2019, and he elected the Direct Review lane of the modernized review system. As the AMA only applies to claims for which VA issues notice of an initial decision on or after February 19, 2019, the Veteran’s appeal is limited to the June 2019 rating decision. See 38 C.F.R. §§ 3.2400, 19.2. Initially, the Board finds that the February 1983 rating decision became final as 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. 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. Historically, the February 1983 rating decision assigned an initial noncompensable rating for hypertension under Diagnostic Code 7101. The decision acknowledges that in May 1979, the Veteran underwent a period of high blood pressure evaluation with a diagnosis of hypertension and that medication prescribed. The RO further acknowledged that the November 1982 VA examination showed that the Veteran’s blood pressure was within normal limits and that he was not on medication. A review of the November 1982 VA examination report shows that the Veteran’s blood pressure was 130/82. Under the version of 38 C.F.R. § 4.104, Diagnostic Code 7101 (effective September 9, 1975) extant at the time of the February 1983 rating decision, hypertension warranted a 10 percent rating where diastolic pressure was predominately 100 or more. A minimum 10 percent rating was also warranted where continuous medication was shown necessary for control of hypertension with a history of diastolic pressure predominantly 100 or more. A 20 percent rating was warranted for diastolic pressure predominantly 110 or more with definite symptoms. A 40 percent rating was warranted for diastolic pressure predominantly 120 or more and moderately severe symptoms. A 60 percent rating was warranted for diastolic pressure predominantly 130 for more and severe symptoms. The Veteran asserts that there is CUE in the February 1983 rating decision that assigned an initial noncompensable rating for the Veteran’s service-connected hypertension. See, e.g., CUE motion (May 23, 2019). Specifically, the Veteran asserts that the RO may have overlooked service treatment records showing the following blood pressure readings: 130/90 (May 29, 1979); 130/92 (May 30, 1979); 138/98 (May 31, 1979); and 140/100 (January 15, 1980). Initially, the Board notes that the February 1983 rating decision acknowledged the fact that the Veteran was evaluated for hypertension in May 1979. Although the February 1983 rating decision did not specifically discuss Veteran’s specific blood pressure readings, at the time of the February 1983 rating decision, the RO was not required to provide a statement of reasons or bases as to its conclusions. See Natali v. Principi, 375 F.3d 1375, 1381 (Fed. Cir. 2004) (holding that statements of reasons or bases in RO decisions were not required prior to the Veterans’ Benefits Amendments of 1989, which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision); see also Eddy v. Brown, 9 Vet. App. 52, 58 (1996) (holding that “silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record”). Consequently, in order to establish CUE in a rating decision prior to February 1990 based on the failure to consider a particular fact or law, “it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case.” Evans, 27 Vet. App. at 189 (quoting Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005)). There is no indication from the face of the February 1983 rating decision that the particular facts highlighted by the Veteran were not considered. Critically, in support of his argument that an initial compensable rating is warranted, he cites four separate blood pressure readings, only one of which reveals diastolic pressure of at least 100. As the law extant at the time of the February 1983 rating decision required pressure predominately 100 or more, the Veteran’s cited blood pressure readings do not support an initial compensable rating. 38 C.F.R. § 4.104, Diagnostic Code 7101 (effective September 9, 1975). The Veteran’s argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. However, “[i]t is the prerogative of the factfinder . . . to interpret the evidence and draw reasonable inferences from it.” Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. For these reasons, the Board finds that the correct facts, as known at the time, were before the VA adjudicators in February 1983 and the statutory and regulatory provisions extant at the time were correctly applied. (Continued on the next page)   In light of the foregoing, the Board concludes that there is no basis for revision of the February 1983 rating decision on the basis of CUE to reflect an initial compensable rating for hypertension and thus the issue must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.