Citation Nr: 20045573 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 18-52 866 DATE: July 8, 2020 ORDER Revision or reversal of the December 1971 rating decision reducing the Veteran's rating for his gastric ulcer, on the basis of clear and unmistakable error (CUE) is denied. Entitlement to a compensable disability rating for gastric ulcer with gastritis is denied. REMANDED Entitlement to service connection for joint pain (claimed as rheumatoid arthritis) is remanded. Entitlement to service connection for sarcoidosis associated with rheumatic fever is remanded. FINDINGS OF FACT 1. The December 1971 rating decision, which reducing the Veteran’s rating for his gastric ulcer was adequately supported by the evidence of record, considered the correct facts as they then existed, correctly applied the statutory or regulatory provisions extant at that time, and did not contain an undebatable or egregious error of fact or law that was outcome determinative. 2. During the period on appeal, the Veteran has not experienced any symptoms associated with gastric ulcer with gastritis. CONCLUSIONS OF LAW 1. The December 1971 rating decision which reduced the Veteran’s disability rating for his service-connected gastric ulcer was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Code 7304. 2. The criteria for a compensable rating for gastric ulcer with gastritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7304, 7307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1970 until his honorable discharge in October 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain outstanding VA treatment records, service treatment records (pertaining to the issue of sarcoidosis), and to afford the Veteran VA examinations for the issues of gastric ulcer and rheumatoid arthritis on appeal. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Clear and Unmistakable Error Generally, a decision of the VA regional office (RO) that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a). CUE is a very specific and rare kind of error of 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 have been manifestly different but for the error. Thus, even where 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE 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). CUE is a collateral attack on an otherwise final rating decision by an RO. 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. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). 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). Here, a December 1971 rating action reduced the Veteran’s service-connected gastric ulcer disability from 20 percent disabling to a non-compensable disability rating, and the Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the December 1971 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. The Veteran asserts that there is CUE in the December 1971 rating decision that reduced the Veteran’s service-connected gastric ulcer disability from 20 percent disabling to a non-compensable disability rating. He asserts that the reduction in his disability rating from 20 percent disabling to a non-compensable disability rating because he was rated 20 percent disabling at discharge and that Headquarter Sixth Naval District, Charleston, South Carolina, Physical Evaluation Board stated that “…such disability may be permanent.” Furthermore, the Veteran asserts that his 20 percent disability rating (for gastric ulcer) must be set aside by the Board and reinstated with retroactive compensation back to 1971 because it was in violation of 38 U.S.C. § 110; 38 C.F.R. § 3.951(b) pertaining to a rating in effect for 20 years or more. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. 1. Revision or reversal of the December 1971 rating decision reducing the Veteran's rating for his gastric ulcer, on the basis of CUE The Veteran asserts that the December 1971 rating decision that reduced his rating for gastric ulcer from 20 percent disabling to a noncompensable disability rating should be reversed on the basis of CUE because it was in violation of 38 U.S.C. § 110; 38 C.F.R. § 3.951(b) as a rating in effect for 20 years or more. As a preliminary matter, the Board will address the two assertions of the basis of CUE by the Veteran. First, the Veteran asserts that he is entitled to a 20 percent disability rating because that is what was granted at separation. Second, the Veteran asserts that he is entitled to reversal of the rating reduction because it was in violation of 38 U.S.C. § 110; 38 C.F.R. § 3.951(b) as a rating in effect for 20 years or more. To address the Veteran’s first assertion, ratings that are not protected may be reduced or increased when the evidence supports a change in the severity of the disability. Although the Veteran asserts that he was told that the disability may be permanent, the evidence of record at the time of the December 1971 rating decision shows that the severity of the disability had vanished. It was not a “protected” rating as it had been in effect for less than one year. To address the Veteran’s second assertion, the Veteran was granted entitlement to service connection for his gastric ulcer in October 1971. The December 1971 rating decision reduced the Veteran’s disability rating from 20 percent disabling to a non-compensable disability rating, effective March 1, 1972. Therefore, the Veteran’s 20 percent disability rating was effective for under 6 months and was therefore not a protected rating. The regulation in effect at the time authorized re-examination. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Moreover, at the time of the December 1971 decision, the evidence before the rating board included a November 1971 examination report. That report included a Normal Upper GI Series and the Veteran’s History wherein he indicated that he had no further recurrences of severe abdominal discomfort. Thus, there was a factual basis to support the rating board’s determination. Moreover, at the time of the December 1971 rating action, the rating board was permitted to rely on its own medical judgment to support its conclusions. Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (finding that a rating panel was not prohibited from relying upon its own medical judgement to support its conclusion where the rating panel included s medical member); cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The Board notes that it was regular practice of the VA in 1971 to have three-member rating panels, and that on the rating board, one of the members “will be a medical doctor” (i.e. the medical member). As can be seen on the face of the December 1971 rating decision, a medical member of the rating board participated in making the determination and, as a signatory to the determination, affirmed his agreement with the finding that [ultimate finding of RO, e.x. the Veteran’s psychiatric disorder was not incurred in service or related to his service-connected disability]. MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (affirmed No. 2011-7034 (Fed. Cir. Jan. 11, 2012)); Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the VA’s position was substantially justified in a pre-Colvin decision relying on its own medical judgment). “[T]he presence of the medical member on the [rating board], pre-Colvin, allowed the [b]oard to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment.” Hime, 28 Vet. App. at 8. Thus, to the extent the December 1971 determination is alleged to be contrary to the medical evidence of record, the Board finds that the rating board apparently relied upon the medical judgment of the medical member, among other things, in deciding the claim. While the Veteran may not agree with the rating board’s determination, this is not a basis for finding CUE. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 2. Entitlement to a compensable disability rating for gastric ulcer with gastritis (previously rated as gastric ulcer) The Veteran asserts that he is entitled to a 20 percent disability rating for his service-connected gastric ulcer with gastritis because upon his medical discharge, that was what he was initially awarded, and he was told at the time that the condition may be permanent. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7304 provides the criteria for rating gastric ulcer. A mild gastric ulcer with recurring symptoms once or twice yearly warrants a 10 percent disability rating. A moderate gastric ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations warrants a 20 percent disability rating. A 40 percent disability rating will be assigned where there is evidence of a moderately severe gastric ulcer; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times per year. A 60 percent disability rating is warranted where there is evidence of a severe gastric ulcer; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, or melena, with manifestations of anemia and weight loss, productive of definite impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7304. Diagnostic Code 7307 provides the criteria for rating hypertrophic gastritis. A 10 percent disability rating is warranted when there is chronic gastritis with small nodular lesions, and symptoms. A 30 percent disability rating is warranted when there is chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent disability rating is warranted when there is gastritis with severe hemorrhages or, large ulcerated or eroded areas. 38 C.F.R. § 4.114, Diagnostic Code 7307. The Veteran was afforded a VA examination in May 2014. The May 2014 VA examiner found that it was more likely than not (greater than 50 percent probability) that the Veteran did not have an active gastric ulcer because there was no evidence of a gastrointestinal bleed and concluded that the Veteran’s symptoms of abdominal pain and gas are related to the Veteran’s nonservice-connected gastroesophageal reflux disease (GERD). The Veteran was afforded a second VA examination in December 2019. The December 2019 VA examiner noted that the Veteran reported that he has not had a recurrence of the gastric ulcer. The December 2019 VA examiner found that the Veteran did not have any signs or symptoms of a stomach or duodenum condition. Based upon a review of the evidence record, the Board finds that the Veteran’s gastric ulcer with gastritis do not show any complaints or clinical findings that suggest that the Veteran is entitled to a compensable disability rating. REASONS FOR REMAND 1. Entitlement to service connection for joint pain (claimed as rheumatoid arthritis) Because a decision on the remanded issue of entitlement to service connection for sarcoidosis associated with rheumatic fever could significantly impact a decision on the issue of entitlement to service connection for joint pain (claimed as rheumatic arthritis), the issues are inextricably intertwined. A remand of the claim for entitlement to service connection for joint pain (claimed as rheumatic arthritis) is required. 2. Entitlement to service connection for sarcoidosis associated with rheumatic fever is remanded. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, or has an associated service-connected disability, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). As noted above, the December 2019 VA examiner noted that the Veteran likely has active sarcoidosis. Here, the Veteran likely has active sarcoidosis; the Veteran is service connected for rheumatic fever; the Veteran’s sarcoidosis may be related to his rheumatic fever. Because there is evidence of currently diagnosed disabilities, a current service-connected disability, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview if an in-person examination is not feasible) by an appropriate clinician to address the nature and etiology of the Veteran’s sarcoidosis. The entire claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s disability began in service, was caused by service, or is otherwise related to active military service, including but not limited to secondary to his service-connected rheumatic fever. A complete rationale must be provided for any opinion offered. (Continued on the next page)   2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for joint pain (claimed as rheumatic arthritis). If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.